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Full text of "The Practice of the Ecclesiastical Courts: With Forms and Tables of Costs"

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Bodleian 



Library 

Go OX.. 
5SS 



Bodleian Library Oxford 




A 



f •• 



THE 



PRACTICE 



or THE 



UttlMta^tital <Sourt«, 



WITH 



FORMS AND TABLES OF COSTS. 



BY 



HENRY CHARLES COOTE, 

PHOCTOB IN OOCTORt' COMMONS, AWD ONB OV THE KXAMINBftS TO THB JUDICIAL 
COMMITTBB OP BRA MAJBSTY'S MOST lONOURABLV PRITT COUNCIL AND 
TBR AR08B8 AND.PRIROGATIVB COURTS OV CANTBRBURT- 



LONDON: 

HENRY BUTTERWiBRTH, 7, FLEET STREET, 

EalD Sooiisf Ilcr snU 9it%Iii|er. 

HOPOB8 AND 8MITH» OftArrON ST., DUBLIN. 

1847. 



ADVERTISEMENT. 



The principles which regulate the Judicial Practice of the 
Ecclesiastical Courts have, in their older form, been illus- 
trated by Gierke, Conset, and Oughton ; the latter of whom 
has also annexed to his work some formnlar .precedents, 
which have long since, however, become obsolete and im- 
practicable. 

With this solitary exception, (if, indeed, it be such,) 
there is not, as far as I am aware, any puUication either 
of early or recent date, which has been conceived upon 
the plan of the present Compilation, and it was the con- 
sideration of this deficiency which prompted me to make 
the first step toward supplying il by a Selection of such 
Modem and Approved Precedents as would embody and 
elucidate the General Principles of Ecclesiastical Practice. 

The peculiarity, therefore, which I claim for the following 

pages wiU, I trust, assist to excuse the faults which will 

be found in them, and suggest to the candid Reader, who 

is not ignorant of the difficulties which attend the adoption 

of a new method, an indulgence for any imperfection of 

information, or crudeness of remark, which the scrutiny of 

a critic may detect. 

a2 



IV ADVERTISEMENT. 

In making the assertion, however, that the method which 
I have pursued forms the peculiarity of these pages, I 
mean only to express that no complete or general compi- 
lation on this subject has yet been submitted to the judg- 
ment of the Public. 

In the lucid and excellent Sections on Practice which 
have appeared in the new edition of Bum^s "Treatise on 
the Ecclesiastical Law,** by Dr. Robert Phillimore, the 
same plan has been followed; though, owing to the range 
of the work being too wide to allow the amplification of 
any single department, they are necessarily on a small and 
limited scale. If the learned and talented Editor had 
extended his plan so as to embrace all the phases of prac- 
tice discernible in the Ecclesiastical Courts, there would 
have been no necessity for the present Compilation, and I 
should have unhesitatingly suppressed the materials which 
I had collected for it. 

Henry C. Coote. 
Doctors* Ckmunons, 



INTRODUCTION. 



Notwithstanding the attention which the Ecclesias- 
tical Jurisdiction has for many ages attracted, from the 
religious and important nature of the powers which it 
exereises, very scanty infonnation can be found in print 
respecting its early or later history in this country. The 
difficulty, therefore, which the compiler of the present 
manual experienced in procuring authentic materials for 
this subject will, he trusts, be his es:cuse for the follow- 
ing meagre and insufficient notices collected by him 
during the leisure moments of an active professional 
career. 

Considering that some explanation was due to the 
reader before he entered on the details of the legal 
practice of the Ecclesiastical Courts, he had recourse to 
the original sources of the Archiepiscopal Regutra^ 
which exist only in manuscript, in order to obtain the 
required elucidation : and it is chiefly from these records, 
aided in some instances by the older church historians, 
that the compiler has derived the groundwork of the 
following observations, the scope of which is principally 

D 



2 INTRODUCTION. 

to shew that the subject matter of the Ecclesiastical 
Jurisdiction has flowed naturally and legally into its 
present channels^ the greater portion of it not existing 
in this country^ as the law of any tribunal^ prior to the 
introduction of the Consistories^ and the remainder 
haying undergone^ through means of the latter^ so bene- 
ficial a developement in principles of equity^ that a 
claim even of original merit might almost be made and 
supported. 

The establishment of these courts was in this coimtry 
of considerably later date than in almost any other 
state of Europe. On the continent they had been in 
active operation ever since the reign of the Emperor 
Theodosius^ the younger, to whom must be ascribed 
their first legalization. But even before that age the 
separation of the Christian body from the nation at 
large, which still adhered to paganism in almost all ma- 
terial points, both in practice and opinion, had occa- 
sioned many peculiar questions in which their faith 
might be in some degree compromised or implicated, 
to be treated upon and determined by their own assem- 
bly under the supervision of the higher priesthood, and 
without the intervention of the ordinary civil tribunals 
of the state. This, we have every reason to regard as 
the first germ of the Ecclesiastical Jurisdiction, an 
authority peculiar to and perhaps co-existent with 
Christianity itself, and to which it is impossible to 
find an exemplar or analogy in any pagan state of anti- 
quity. 

Whilst in England these courts, as we shall after- 
wards see, owe their ostensible birth to a sudden and 
fortuitous introduction of foreign usages and principles 
of law; on the continent, they had been the gradual 



INTRODUCTION. 3 

and spontaneous product of opinions deducible from 
and connected with the dogmas and traditional prac- 
tices of the Christian religion itself. The Churchy as 
a governing power, possessed, simultaneously with the 
authority of inflicting a private penance for the more 
secret offences of a minor grade, a corresponding juris- 
diction to impose a public admonition and censure on 
offenders of a glaring and scandalous character(a) ; and 
to the exercise of the latter of these powers we owe 
the criminal processes of the church pro salute amm«, 
or for the reformation of moral excesses* In the same 
manner, the circumstance of marriage being regarded in 
the light of a sacrament or sacramental rite, necessarily 
placed it, together with all circumstances connected 
therewith, entirely under the control of the Church. 

This jurisdiction being, therefore, native and inherent, 
received at the hands of Theodosius no more than a 
general confirmation and support. But from the simple 
text of the Codex Theodosianua, by which the bishops 
are pronounced to be the proper judges in all cases, 
^ guoties de reUgione agiiur/^ the Ecclesiastical Juris- 
diction recdved a liberal amplification in succee^g 
ages, through the voluntary concessions of the dvil 
government; for the Church subsequentiy acquired a 
complete power of adjudication, not only over the con- 
duct of clerks, its own revenues, and marriages, but also 
over the accessory questions of dower and alimony, the 
breach of fiuth in sworn compacts or promises, the 

(a) Manifesta precata Don sunt must be referred to the bishop of 

occulta correctione purganda, the diocese. Cod. Theod. \es. 1, 

Decict. Ortg. 9, Itb. 5, tit 38, derelig. << Quoties de reli^one 

cap. 1. Ofiences of this kind, agitur, episcopos convenit judi- 

according to the canon law, can- care.'' 
not be absolved by a priest; they 

b2 



4 INTRODUCTION. 

validity or invalidity of last mUsy the enforcement of 
legacies^ and the administration of a deceased person's 
property. 

This was the condition of the continental Ecclesias- 
tical Courts at the epoch of the accession of the Nor- 
man conqueror to the throne of England; and they had 
already excited the jealousy and awakened the late re- 
pentance of the secular authorities, with whose juris- 
diction they on many occasions clashed and were suc- 
cessfully competed. In the words of a great French 
antiquary(£) describing tJieir state at this time — " Curiee 
Christianitatis amplissima fuit jurisdiction cum questio- 
num et causarum omnium quae non modo res ecclesiae 
sed et sacramenta^ et quidquid ex eis dubietatis oriretur^ 
spectant^ cognitionem sibi arrogasset.'^ 

Nothing of this kind was to be seen in England^ at 
the time of the Norman conquest. The Anglo-Saxon 
common law never recognised the principle of a sepa- 
rate civil or criminal jurisdiction, as exercised by the 
Church^though, either out of respect to the sacred cha- 
racter of its members or from a sense of their superior 
learning and intelligence, it had certainly admitted the 
Episcopal order to a participation in the municipal 
judicature of the country. For ever since the intro- 
duction of Christianity into England, the bishops had 
sat to hear causes in the county court, in conjunction 
with the ealdorman or his sheriff. 

It will be a mistake, however, to suppose that the 
secular authorities, even in those times, interfered (at 
least legally) in the administration of justice by the 
bishop in matters which regarded the assignment of 

(6) Duconge, sub voc. Curise Christianitatis. 



INTRODUCTION. 5 

penance for a public immorality or indecorum^ or in 
the cognizance and punishment of the excesses of the 
clerks of his diocese* These questions, though dis-> 
cussed and tried in the presence of the hundred, were 
reserved for the judgment and decision of the bishop 
alone. But this hybrid union of courts, besides its 
great practical inconvenience, was for other reasons un« 
likely to find favour in the eyes of the foreign church- 
men, who had succeeded to the Episcopal sees of Eng- 
land on the expulsion of the native prelates; they had 
been educated under a totally different system; many 
of them had previously acquired fame for their pro- 
ficiency in the peculiar law of the Church; and during the 
old oonstitution of things in England, there was but 
small scope for a display of the powers and ambition of 
a cultivated intellect and learning. The Saxon muni- 
cipal courts, as it would appear, never possessed a bar 
of professional advocates, and their gothic manner of 
trial could not fail to wear a barbarous aspect to men 
whose minds were fraught with a prepossession in favour 
of the more refined jurisprudence of the code, or the 
Ecclesiastical canons. But a stronger and less worldly 
motive may have influenced the Norman conqueror and 
his clergy to effect the revolution to which I am now 
alluding; for it is not improbable that religious scruples 
might have occasioned a. reluctance on their part to 
countenance a scheme which continually exposed them to 
the risk of violating the canons by personally inter- 
fering in secular causes, or compelled them to endure the 
scandal of seeing, on many occasions, matters of reli- 
gious censure^ if not directly submitted to the decision 
yet at least subject to the interposition of a lay judge. 
For as the bishop and the ealdorman presided over 



6 INTRODUCTION. 

an united courts the separation of causes could not 
constantly be so strict but that the one should at 
times intermeddle in the peculiar proTince of the 
other. And finally another reason also existed for the 
change: the scyigemot or county courts soon after the 
accession of William the First, was considerably 
abridged of its legitimate powers, and from its former high 
rank as a tribunal of the first instance, was converted into 
a merely secondary court of justice by the institution of 
the Norman aula regisy which began to absorb the ge- 
neral legal business of the kingdom; and accordingly the 
attendance at the degraded county court, however it 
might have satisfied the unassuming temperament of 
the English bishops of that period, could scarcely 
square with the more elevated pretensions of the foreign 
intruders. 

The persuasions of the dergy, therefore, backed pro- 
bably by the authority of the pope, may have been the 
inducing reason to William the First to separate the un- 
natural conjunction which had hitherto existed between 
the Municipal and Ecclesiastical Jurisdictions, and to 
ordain that, for the future, no bishop or archdeacon 
should hold pleas founded on the canon law, (de legibus 
episcopalibus,) in the hundred or county court, or lay be- 
fore secular men any question which conceded the 
government or cure of souls. 

These enactments were contained in a statute of , the 
Norman parliament, (for such it is, though commonly 
styled a charter of that monarch,) the date of which 
is not expressed, and cannot be now supplied from any 
extrinsic source. 

This act, though brief in its expressions, is pregnant 
with the clearest directions respecting the constitution 
and regimen of the new intended court. 



INTRODUCTION. 7 

It not only defines the nature of the suits to be tried 
there, at the same time providing a code of laws for 
the guidance of those who should be appointed to ad- 
nunister justice in relation thereto, but it also prescribes 
for these courts a fixed and settled locality; and finally, 
^without derogating from the rights of regal preroga- 
tive by setting up an tmperinm in imperioy a conse- 
quence to be fairiy apprehended in that era of clerical 
pretension, if this new creation had been endowed 
with the power of effectually enforcing its decrees by 
a direct course through its own ministers and satellites, 
by a consummate stroke of policy, it subjects the infant 
juris£ction to a complete dependence on the munici- 
pal authority, by taking the immediate execution of all 
its sentences out of the hands of ecclesiastics and refer- 
ring it entirely to the secular arm of the justiciaries of 
the crown. 

This is plainly shewn by examining the details of the 
instrament(c)« 

It commences by reciting that until William's time 
the episcopal laws had not been well administered or 
according to the precepts of the holy canons, and he 
therefore adjudged, by the advice of the common coun- 
cil and council of his archbishops, bishops, and abbots, 

(c) Ancient Laws and Insti- salutem. Sciatis vos omnes et 
tates of England, by Thorpe, caeteri mei fidelea qui in Anglia 
1840, p. 213. From a tranacnpt manent quod episcopales leges 
in the Uher Filoius of the Dean qusB non bene, nee secundum 
and Chapter of St. Paul's, Lon- sanctorum canonum precepta us- 
doD, and in the Register of Lin- que ad mea tempora in regno 
coin, Remig. fol. 9. Co. Instit Anglorum fuerunt, communi 
5, par cap. 53, fo. 260. Godol. concilio etconcilioarchiepiscopo- 
Rep. Ca. cap. 10. " Willielmus rum, meorum et csterorum epis- 
gratia Dei rex Anglorum, comiti- corium et abbatum, et omnium 
DOS vice comitibus et omnibus principumregnimei emeudendas 
Franci^is et quibus in episco- judicavi." 
pates Kemigii terras habcntibus 



10 INTRODUCTION. 

adopted the practice of the Roman Consistory, and to 
which they have closely adhered up to the present day, 
the modem formulare varymg little if at aU from its 
original standard. 

In caoaes of the first instance, the dtation, the libel, 
the Utia conteBiatioy the answers, the compulsories, or 
liters compuborialesy to enforce the attendance of wit- 
nesses, were and still are identical in form with the 
instruments in nse at Rome. There was also the same 
examination of witnesses in secret, and the consequent 
decree of publication passed by the judge before their 
depositions or evidence could be imsealed and read. 
In appellate causes the same inhibition issued to the 
judge, a quo, or inferior ordinary, and to the party re- 
spondent, enjoining them to forbear innovating or 
attempting anything to the prejudice of the appellant's 
right of appeal, &c. &c. In a word, the formal instru- 
ment and pleadings are still conceived in the terms 
prescribed by the ancient practice of the courts of 
Rome(«), 

But a few remarks on the general process and for- 
mulare of the Ecclesiastical Courts may not be out of 
place here. 

The offender was summoned into judgment, by writ 
of citation under the seal of the ordinary, and on his 
appearance, the libel or articles containing the accusa- 
tion or charges were brought in and proffered to him. If 
the latter were imexceptionable in point of law or rele- 
vancy, they were admitted to proof, and the judge then 



(e) Of this any person may easily num, articulorum exceptionum, 

convince himself; and for that interxo^atoriorumy et petitionmn 

purpose I refer him to the "For- sententiarum et appellationum, 

muiarium variarum eommissio- &c. Rome, 1602. 



INTRODUCTION. 11 

called upon the accused to give a general answer or 
iflsue in the affirmatiYe or negative to the charge of the 
accuser. 

This was an imitation of the Uiia coniatatio of the 
civil law^ and was siznidy an averment in the n^ative 
or affirmative of the truth or falsehood of the charge. 
If a denial were given^ and the suil contested ntge^ 
tively, a sworn personal answer was then exacted from 
the defendant, though the plea might contain criminal 
imputations, and he should consequently, by a full and 
sincere response, if guilty, confirm the accusation of his 
eneiny(/). If the negative issue were followed up by 
an imqualified and consistent denial in the personal 
ana;wer of the defendant or party cited, (as he is termed 
in the technical languid of the Ecclesiastical Courts,) 
the plaintiff or promoterwould then be obliged toproduce 
witnesses in support of his case, who were accordingly 
swcMm in open court, in the presence of the adverse 
party, the oath of testimony being administered to them 
by the judge. The latter afterwards himself strictiy 
examined the witnesses in a secret chamber, {/aribua 
cbnma,) assbted by his r^strar or actuary, who faith- 
fully recorded in writing their several depositions. The 
same process was adopted in regard {g) to the sworn 
answers of the defendant. 

The defendant, of course, had the liberty of counter- 
pleading, and the same ground was then gone over by 
him. When each party considered his case to be suf- 

(/) This was prohibited by 13 or any other oath known to the 

Car. 2y e. 12, 8. 4. And the his- canon or civil law, were not 

torians occasionaUy call it the equally an oath ex officio, 
oath ex officio, as if the juris- (g) Oughton, Ordo Judicio, et 

mentnm cahumuK or malitin, Causis, tit. 4, s. 8, and in Nota. 



12 INTRODUCTION^, 

iiciently made out to enable him to bring it before 
the court, the original cause was concluded or wound 
up^ and the judge decreed publication to pass on the 
sayings or depositions of the witnesses. Informations 
were next taken, t • e. the evidence was read, and its cre- 
dibility and sufficiency debated upon, in open court, by 
the advocates of each party, the judge finally determining 
the question by a definitive sentence in writing, or by a 
verbal interlocutory decree. This is but a slight sketch 
of the strictly ancient practice; but I have said enough 
to shew that the same scheme is still pursued, except in 
a few instances, where the express provisions of tibe 
legislature have innovated on its principles, or an idea of 
convenience has effected some inconsiderable alteration. 

The scheme of practice adopted by the Ecclesiastical 
Courts consists of a series of interlocutory orders, tech« 
nically called assignations, which are the product and 
successive steps of the cause. These are the same in 
their character, and also bear the same appellations in 
the English courts, as they now or formerly did at the 
supreme Court of Rome. 

The constitution of the Ecclesiastical Courts was in 
all respects superior to that of the municipal tribunals. 
Deriving the forms of their judicial proceedings from 
the refined and ancient source I have before intimated, 
they at the same time adopted the custom of the regu- 
larly admitted and stationary bar of advocates, and as a 
further assistance to the illiterate or inexperienced 
client, a certain number of authorized attomies of the 
court, denominated procuratores or proctors, were or- 
dained, who might guide him through the difficulties and 
niceties of his suit, and legally represent him in the 



INTRODUCTION. 13 

presence of the court. The latter privilege was long 
anknown to the suitor at common law (A). 

There is little doubt that the establishment of the 
Ecclesiastical Courts gave a higher tone and character 
to the general judicature of the country. Their grave 
and erudite system of practice^ and their precise and 
accurate method of taking evidence^ formed a striking 
contrast to the rude and summary proceedings of a trial 
per pais at that period. The preponderance of relative 
merit must obviously have been in favour of the tribunals 
of the Church. The foreign jurists who presided over the 
in&nt Consistories and their English successors were 
all men of the highest learning in their department, and 
their efforts^ of which one result is the Court of 
Chancery, produced in the sequel the most beneficial 
consequences for the English laws and constitution, 
by imparting to tiie theory of both more refined and 
extended principles. 

But the weak point of Ecclesiastical Jurisdiction has 
always consisted in its inability to enforce its own 
decrees. 

This was originally owing to a reluctant delicacy of 
feding on the part of the Church itself, but it has been 
maintained up to the present time, by the unnecessary 
jealousy of the legislature and the lay judges of the 
Crown* 

The concluding sections of the statute which refer to 
this subject are devoted to applying a remedy for the 
contumacy of offenders. They are as follow :— ^^ If 



(A) The constitutions of Otho ratorum. See also a Constitution 

contain many curious regulations of Peccham in Lynda, lib. 1, tit 

req>ecting Uie appointment of 18» 1281. 
proctors^ tit. 24, de officio procu- 



14 INTRODUCTION. 

any person elated by pride will not come to the bishop^s 
justice (ad justitiam episcopaliam), let him be called 
once, twice, and thrice, and if he will not then come to 
make compensation (ad emendationem), let him be ex- 
communicated ; and if need shall be, let the power and 
justice of the king or his sheriff be employed in vindi- 
cating this ''(i). 

Excommunication was the only weapon which the 
Church possessed, and we may easily conceive that to 
a hardened offender it could have had few terrors, as 
the penal result lay in so remote a perspective. This 
species of spiritual outlawry had consequently been 
found on many occasions to &iL in its desired effect, 
when the pecuniary claims of the Church were to be 
enforced, or her correctional orders obeyed, and she 
had felt herself, though with reluctance, compelled to 
resort to the fortifying arm of the secular law. This 
invocatio brachii secularise as the canonists quaintly 
termed it, was the only resource that lay in her power. 
For the acceptance of an authority of equal strengtii 
and sternness with the ordinary secular jurisdiction, 
though it were the voluntary and unsolicited offer of 
the princes who were able to confer it, would in her 
apprehension have exposed her to the imputation of 
having abandoned the sacred precepts of her Divine 
Founder, whose kingdom had been by him declared to 
be not of this world. This feebleness of the Ecdesias- 
tical Jurisdiction was therefore of its own choosing. 



(i) Si vero aliquis per super- nerit, excommunicetur: etsiopus 

Uam elatug ad justitiam episoopa- fuerit ad hoc vindicandum, forti- 

lem venke non voluerity vocetur tudo et iustitia regis vel vice co- 

aemel, et secundo et tertio ; quod mitiB adoibeatur. 
td nee sic ad emendationem ve- 



INTRODUCTION. 15 

The epoch of the first application of this natare is 
uncertain, but it was undoubtedly early ; and the tem- 
poral power appears to have been, in all ages subse- 
quent to the establishment of Christianity, attentive to 
the wants of the Church in this respect, and ready to 
afford aid of this limited kind on all occasions of her 
invocation. 

But even when custcnai had familiarized it in the 
minds of men, and the highest audiorities of the 
Church had sanctioned it by their express approval 
and practice, there were many ecclesiastics to whose 
rigid consciences this resort to the secular arm was 
a source of doubt and anxiety, as an inferential breach 
of the canon whenever blood followed its active and 
strenuous interference. We have an instance where a 
pope condescended to remove scruples of this kind 
which had arisen in the mind of a well-disposed but 
timid churchman. 

Clement the Third, in a decretal epistle addressed to 
a bishop whose name and diocese are suppressed by 
the compiler, in order to silence the doubts which the 
other appears to have entertained and expressed on the 
subject, urges, that ^' if the king (to whom the sword 
of justice is committed to uphold the good as well as to 
punish the bad,) has directed upon the rebels of eccle- 
siastical authority the power so entrusted to him, on 
the complaint of the Church, the consequence of such 
contumacy must alone be imputed to their stubbornness 
or guilt "(*). 

(k) Decret Greg. 9, lib. 5, tit. gladius est commiasus) in eosdem 

12, c. 21. " Si te hujuamodi rebelles traditam aibi ezercuerit 

querimoniam simplidter depo- potestatemeorum eritduritiseiaut 

nente rex (cui ad bonorum lau- malitiae imputandum. 
dem, vindictam vero malorum 



16 INTRODUCTION. 

The Conqueror provided for the English Ecclesias- 
tical Courts the same relief and support which were 
allowed to them on the Continent. The next section 
of the act contains a remarkable enactment [1). " He 
who on being called has refused to come to the justice 
of the bishop (ad justitiam episcopi)^ for each calling 
shall amend the episcopal law. This alludes probably 
to the wite of the Anglo-Saxon eera^ for oferse wennisse^ 
which the defendant incurred by contumaciously ab- 
senting himself from the presence of the judge by 
whose summons he was convened. 

The next section is as follows (m) : ^^ This also I 
forbid^ and by my authority prohibit^ that any sheriff^ 
bailiff^ or minister of the king, nor any layman, inter- 
meddle in the laws which belong to the bishop, nor any 
layman bring another man without justice to trial be- 
fore the bishop.^* 

These enactments are only intended as a piece of 
advice to each court to mind its own jurisdiction, with- 
out intrenching on the province of the other, and 
from them was deduced the practice of prohibitions. 
Another section concludes this ordinance (n). ^' Judg- 
ments shall be given '^ (perhaps it may be rendered 
trial shall be held) ^^ in no place but the episcopal seat. 



(/) Ille autem qui vocatus ad justitia episcopi ad judicium ad- 

justitiam episcopi venire noluit, ducat. 

pro una quoque vocatione legem (n) Judicium vero in nullo 

episcopalem emendabit loco portetiur nisi in episcopal! 

Si) Hoc etiam defendo et mea sede aut in illo loco quern ad hoc 

otitateinterdiconeullusvice- Episcopus constituent." The es- 

comes aut propositus aut minister pression *' portare judicium " oc- 

regis, nee aliquis laicus liomo de curs in Domesday, Lincoln, 336. 

le^UB quae ad episcopum perti- " Sed his Jurantibus contradicit 

nent se intromittat ; nee aliquis vluiet ct offert se portaturum ju« 

laicus homo alium hominem sme dicium quod non ita est sicuti 

dicunt«l' 



INTRODUCTION. 17 

or in that place which the bishop shall have appointed 
for the purpose/* 

This last sentence is hardly more than a repetition of 
the foregoing proTisions. 

Though this ordinance effected a considerable change 
in the legal constitution of the country^ and seemingly 
deprived the municipal judicature of a portion of its 
former occupation and employment^ yet it must have 
been in no degree a source of regret to the Norman 
lawyers who now presided over the English Courts^ as 
they could hardly feel any disinclination to relinquish 
the cognizance of matters with the study of which they 
were totally trnfamiliar^ as such subjects had formed no 
branch of their previous legal discipline or training. 

The same extent of jurisdiction which existed on the 
Continent appears to have been transplanted without 
curtailment into this country. Independentiy of the 
entire control over the peculiar affairs of the Church 
and of all ecclesiastical structures^ the ordinary was 
the judge who signified to the king's justices the fact of 
a marriage and the legitimacy of a birth. He pro- 
nounced a sentence of divorce between married parties^ 
and determined the validity of a will^ or decreed pay- 
ment of a legacy. 

These and other points occur in the early common 
law records as adipitted portions of the jurisdiction of 
the Church. 

In addition to this^ the Church afterwards acquired 
the management of tithe suits^ and a complete power 
over the personal estates of all persons dying intestate. 

But a clearer view may be obtained by examining 
this jurisdiction more in detail. Its two grand depart- 
ments, comprising various subdivisions, were causes of 

c 




] 8 INTBODUCTION. 

office^ or correction, and of instance ; the former being 
necessarily in the criminal and the latter in the civil 
form. Besides these, however, there were also certain 
other causes which partook of the character of both, or, 
in the language of ecclesiastical law, were causm crimp- 
mUeM cwUiter intentata. 

I will begin with the Criminal Jurisdiction, to which 
both clerks and laity were equally subject. These causes 
were instituted in three modes, viz, by inquisition, ac- 
cusation, or denunciation. The first is a proceeding ex 
mero officio, where the bishop or ordinary, having disco* 
vered a flagrant offender within his diocese, of his own 
mere motion, cites him into this Court, to answer for 
the crime. The second is the every-day process of 
modem times, the voluntary promotion of the judge's 
office by any individual residing within the diocese, and 
answers to the indictment at commcm law ; and the last 
is the presentment of an offender at the ecclesiastical 
visitation, which, though repealed by a late statute in 
the case of a clergyman (o), is still in some degree in 
use in regard to the laity. The subject-matter of the 
criminal jurisdiction is comprised in any sin or offence 
against the general morality and public decency of the 
nation, but which is not at the same time of so hei- 
nous a character as to unhinge the foundation of hu- 
man society, like murder, theft, or homicide, &c. (/>). 
In lines the Church took cognizance of and punished 
incontinence, adultery, perjury, defamation, usury, vio- 
lent laying of hands on clerks, brawling in a church or 
churchyard, drunkenness, blasphemy, absence from 



(o) 3 & 4 Vict. c. 86. moriali peccato in the Circum- 

(p) Lynd. note at the words MpocUagtUu, lib. 3, tit 2. 



IKTBODUCTION* 19 

diuich on Sundays or holidays^ horesy^ &c. {q). In 
clerks a similar jurisdiction obtained^ with more com- 
petent powers of punishment^ for the ordinary could 
admonish^ suspend^ depose^ or deprive^ as the offence 
might deserve, in his opinion, and according to bis 
interpretation of the law (r). The censures to which 
laymen were subject were, with the solitary exception 
of heresy, admonition or corporal penance only. By 
the strict canon law, the judge was forbidden to impose 
a pecuniary fine for a spiritual offence, or commute a 
sin for the payment of a sum of money. Something of 
this kind would appear to have been done in the Saxon 
times, and it certainly prevailed in this country for a 
long period after the establishment of the Ecclesiastical 
Courts, and the permanent introduction of the laws of 
Bome. The Church, however, at all times, properly 
and consistently disapproved pf the practice, though, 
under certain regulations, recognized and declared legal 
by the common law. Pope Alexander the Third pro- 
hibited such a practice in a rescript to the Archbishop 
of Canterbury, on the latter having informed him that 
the Archdeacons of the diocese of Coventry, within his 
province, were wont to exact poenam pecuniariam from 
clerks and laymen for their crimes and excesses, and 
he directed him to compel the observance of his in- 
junction by the censures of the Church {9). 

The Qircumspecte agat%$ of Edward tbie First ap- 
proves of the custom of inflicting a pecuniary punish- 
menl) but makes this distinction, that a plea of the 
nature before referred to shall be allowed in the Court 

(9) Ougbton de Causis, tit. 4. (f) Decret. Greg. 9, lib. 5, tit. 

(r) Ayliffe, Fareigon. Lon. 37, c. 3. 
1734, p. 237. 

C2 



20 INTRODUCTION. 

Christian only. ^^Dummodo ad correctionem peccati 
agetur et non petator pecunia." The meaning of this 
is that the action shall be instituted against the offender 
for penance on the suggestion of an alleged breach of 
good morals^ and not for the recovery of damages for a 
loss sustained; as in the case of defamation^ owing to 
the conduct of the defendant. 

This famous statute^ with a sense of even-handed 
justice which would find warm admirers in a slave state 
of modem times^ recommends that penance shall be 
commuted in aU cases^ ^' si convictus fuerit hujusmodi 
liber homo.^' The remarks of the learned commentator 
Lyndewoode evince a rational disgust at the subject of 
this gloss. Commutation of penance was also approved 
of by the articuli cleri^ 9 Edw. 2, cap. 4. 

Tliere were^ moreover^ causes of office instituted 
against the parishioners^ or churchwardens of a parish^ 
for neglecting to repair a church and supply it with the 
requisites for divine service^ or for not walling in or 
fencing their churchyard^ &c. {t). 

Trials for heresy^ or rather^ as they were always 
termed; for heretical depravity (causae hereticee pravi- 
tatis); were never instituted in the court of the bishop^ 
before 2 Hen. 4; c. 15. Before that statute was passed^ 
it was required that the convention should take place 
at a general convocation of the whole province. In 
regard to this proceeding an error prevails that the 
mere expression of an heretical or schismatic opinion^ 
or any acts bearing that necessary construction^ made 
the offender liable to the extreme censure of the law ; 
but this was not the case^ for if the party confessed the 

(/) Parergon Juris Can. Lond. 1734, p. 238. 



^ 



INTRODUCTION. 21 

crime objected to him^ and signed and read his recan- 
tation^ he was dismissed as a matter of course. It was 
only in the case of the firm or obstinate heretic^ who 
contumacUmsly adhered to his former sentiments, aixd 
consequently refused to recant, that the ecclesiastical 
judge was compelled to certify the sheriff, in whose 
hands the execution of the law remained. The sen- 
tence of the court merely found the indiyidual guilty 
of the crime^ and delivered him over to the secular 
arm. It prescribed no form or modification of punish- 
ment, and the guilt or responsibility would rest with 
the lay officers of the crown, who, however, only obeyed 
tiie directions of the etmnum law in burning the con- 
victed person (tt). 

The next and most important department consists of 
civil causes, and these may be classed as pecuniary, 
matrimonial, and testamentary. The first subdivision 
comprises suits for church-rates, tithes, and for the 
subtraction of any fee or property belonging to the 
Church for which no action would lie at common law* 

The matrimonial suits are subdivided in the follow- 
ing manner, according to the difference of the remedy 
sought by the applicant. Divorce or separation a 
men&a et thoro, on the ground of cruelty or adultery 
on the part of either the husband or the wife, the resti- 
tution of conjugal rights where the one of them has 
causelessly abandoned the other, and lastiy questions 
regarding the nullity of the contract by reason of an 
impeditive physical or civil cause. 

The testamentary jurisdiction of the Church may be 
classed under two heads, the entertainment of suits in 

(») God. Repert Canonicum> 40, p. 562, ed. 1678, Lond. 



22 INTRODUCTION. 

respect of the validity of last i¥ill8^ viz. what is denomi- 
nated j^oAa/fo iokmnisper testes, and for the recorery 
of legacies of personal estate; ahd^ secondly, the power of 
granting probate of a will in common form to an exe- 
cutor, and lettienrs of administration of the goods of an 
intestate to the next of kin. 

With regard to the first-mentioned division of t}ie 
Testamentary jurisdiction, tome doubt may be enter- 
tained, whether it was actually introduced at the epoch 
of the Conqueror's stittute or dssumed by the English 
Church at a subsequent period, as we shall see the 
other division certainly was. At all events, no oppo- 
sition appears ever to have been made to the practice, 
when once the church had begun to assert it, on the 
part of the common lawyers. The celebrated advocate 
in Doctors* Commons, who edited the reports of Sir 
George Lee(y), formerly judge of the Prerogative Court, 
in his preface to that work, would appear to attribute an 
early origin in this country to tiiat particular branch of 
the EcclesiasticalJurisdiction. He stiys — ^'^ When the 
freedom of testamentary disposition, our inheritance 
from our Saxon ancestors, was overwhelmed by the 
feudal system, and had no persona standi in the courts 
of common law, it took refuge in the Ecclesiastical 
Courts/' 

Glanville, who wrote his '^ Tractatus de Legibus et Con- 
suetudinibus regni Anglice/^ during the reign of Henry the 
Second, shows this testamentary jurisdiction to have 
been vested in the Church as early as his own time, and 
he treats the Court Christian as its exclusive and legal 
forum. He says — ^^ Si quis autem aliquid dixerit con- 

{y) Sir George Lee's Repts. vol. 1. 



INmOBVCTION. 23 

tra testementamj scilioet, quod non fiierit tationabiliter 
fiustom^ ydqiiod res petita non fnerit ita nt didtar le- 
gata, tone qmdem placitam iUud in Gixria CfariBtianita- 
tis andlri debet et terminari^ quia pladtcun de testa- 
mento coram judioe ecdesiastico fieri debet^ et per il- 
lonun qni testamento interfuemnt testimonium seeun-* 
dum juris ordinem tenninari^' (z). 

This passage is repeated verbatim by the author of 
Fleta (lib 2, c. 5 79) in whose time the Ecclesiastical Ju- 
risdiction was as extensive as it is now* 

The jurisdiction spoken of by Glanville as belonging 
to the Ecclesiastical judge is the solemn proof of wills 
per testes, and must be carefully distinguished from the 
ordinary probate in common famif which, besides the pro- 
cess of proof Juramenio execuioris, and such additional 
exparte evidence as may appear necessary before the 
decreium super valore, or final approval, is made^ includes 
and comprehends the power of granting i^ministration 
of a deceased's property, ** disposed of by or in any way 
regarding the will/' The last-mentioned power was 
acquired by the clergy at the same time as the control 
over intestacies, and is in efiect identical with it. But 
this was not vested in them, as we shall see, until some 
considerable time afterwards; for in Olanville's age we 
still find that the estate of an intestate was subject to 
the general municipal law of the realm. And though he 
nowhere speaks of the incidents of a total intestacy 
{nuBo condito testamento^ he lays it down as an abso- 
lute rule that, in all cases of partial or quasi intestacy, 
vis. such as occurs where no executors have been ap- 



(f) Tnietatufl de Legibus et (a) Ibid. 
Conraetudmibus Regni Anglis, 
edit 1004| lib. 7, c. 8. 



24 INTRODUCTION. 

pointed by the testator, the next of kin have a right to 
interfere with the disposal and management of the es- 
tate, without any mention of the ordinary, ^^ Si yero tes- 
tator nullos (executores) ad hoc nominaverit, possunt 
propinqui et consangoinei ipsius defimcti ad id facien- 
dum se ingerere^' (6). 

In Saxon times the law of intestacies was in the hands 
of the secular judges, and the few traces of it which are 
preserved evince that the personal effects of an intestate, 
which remained after the payment of his debts and 
other legal charges, were distributed amongst his wife 
and children, or other nearest of kin, by the order of his 
lord, in the soc or manorial court, to which he owed suit 
whilst living, or if he were a thegn or other tenant in 
capiti, by the direction of the County Court. 

This is explained by a passage in Cunt's laws, viz. 
^^ And gif hwa cwydeleas of thysum life gewite, sy hit 
thurh his gymeleaste, sy hit thurh faerlicne death, thonne 
ne teo se hlaford na mare on his aehta, butan his rihte 
heregeata: ac beo be his dihte, seo sehtgescyft swithe 
rihte, wife and cildum and nehmagum, oleum be thsere 
msethe the him to gebyrige/^ i. e. If any one depart this 
life intestate, whether by reason of his negligence or 
through sudden death, then the lord shall not take more of 
his estate than his right heriot, but the division of the in- 
heritance shall be made under his direction (or ordering) 
between the wife and children and near relations, each 
one according to the degree of kindred which belongs to 
him'' (c). This extract, it will be observed, alludes only 
to the jurisdiction of the manorial court; but we may 



(b) Tractotiu de LegibuB et (c) Wilkins' Leg. Angl. Sax. 
Consaetudinibus Regni Angliae, p. 144. 
Edit 1604, lib. 7, c 7. 



INTBODUCTION. 25 

jadge firom analogy, diat where the parties in question 
were thegens, or freeholding ecorls^ any dispute arising 
on the subject of their distributive shares would be re- 
ferred to the court to which alone their suit and service 
were due: viz. the county or hundred court of the 
Ealdorman, or his deputy the sheri£F. 

But it should also be remarked, that in the passage 
just quoted, there is ho hint of any existence of the 
principle upon whidi the system of law established after 
the conquest was founded. The next of kin appear to 
have bad a vested and absolute right, by mere succes- 
sion as the heredes legUimi of the intestate, to retain or 
dispose of the deceased^s property by their own private 
authority, though subject to the lord's interference in 
case of litigated claims. The system, so fisir as regards the 
theoretical principle, was completely remodelled in the 
succeeding age, when the law was placed upon its pre- 
sent footing; no person qua nearest of kin having an in- 
herent right to interfere with a deceased^s property, but 
doing so only by virtue of a delegation firom the ordinary, 
in whom the custody of the effects is vested immedi- 
ately upon the death of the intestate. 

This portion of Saxon jurisprudence received no alte- 
ration at the hands of the Conqueror: it was confirmed 
to the English by chap. 36 of his laws, in the words fol- 
lowing, viz. '^ Si home mort sans devise, si departent 
les enfans I'erit^ entre sei uwel (egal).'' i.e. '^ If a man dies 
intestate, let his children divide the inheritance equally 
amongst themselves^ {d). 
The ancient jurisdiction as well as the law survived in 

{d) Codex Spelmanni, Ric. Aiiglicaiue. Scriptor X» Matt 
Prior Hogust, de gestis regis Ste- Pans. pp. 46, 47, Watt's Edition, 
phani, pp. 31 1, in Twisden Hi»t. 



36 XNTRODUOnON. 

fall Tigour tfaronglioiit the reign of the second William. 
This appears firom the charter granted by his saocessor^ 
Henry the First, at the commencement of his reign. In 
this cnrioas record^ after guaranteeing a perfect fireedom 
of testamentary beqnest to his barons and other tenants 
in capite, Henry adds^ ^^ quod si ipse preventus vel armis, 
yd infimntotey peconiamsoam non dederit reldare dispo- 
suerit, uxor sua siye liberie aut parentes, et legitimi ho- 
mines ejus earn pro animll ejus cBvidant sicnt melius eis 
visum fuerit.'^ i. e. ^ But if^ bdng hindered by war or 
sickness^ he shall not have giyen or arranged to give his 
property, his strife or children, or else his relations and 
lawful men, shall divide the same, for the good of his soul 
as to them shall seem best'' (e). 

The legitimi homines^ or lawful men, mentioned here, 
are the suitors of the hundred or the manorial court to 
which the intestate belonged, according as king or baron 
was his immediate feudal superior. 

On the accession of Stephen, the jurisdiction over 
the estates of ecclesiastical persons dying intestate, was 
at length carved out of the general law; and it is im- 
portant to consider that this prerogative became vested 
in the Church, not only as a concession to its stru^Ies 
for an exclusive jurisdiction over the members of its 
own corporation, but even for more absolute and 
stringent reasons (/*). A custom had obtained both here 
and on the continent, for the barons and lords of ma- 
nors to seize the entire effects of every clergyman, who 
died intestate within their jurisdictions, and had pre-* 



(e) Ducange. sub voce Parens. {f) Histoire Ecclesiastique de 

This is the constant raedlsval lan'ovincedeNonnandie.andthe 

sense of &e word, like the mo- Constitutions in Lyndewode, pas- 

dem French " parent." siin. 



INTRODUCTION. 27 

▼Biled for so long a time that it had even obtained the 
semblance or perhaps the reafity of law* Qn some oc- 
casions they did not take the trouble to ascertahi 
whether the derk might not hare left a wiU^ or if he had, 
to disGiiminate between tiie circomstanoes of the two 



This enonhity was at length prohibited in Eli^^d(^)« 
In the first parliament holden by Stephen^ in order to 
conciliate the minds of the English nation and church, 
he granted a charter of liberties {charta de Ubertatibus,) 
which confirmed or gave a rariety of important poli- 
tical and social privileges. The one which in the 
sequel involved the gi^eatest consequences was contained 
in the clause following;^ to the purport of which we 
before referred, viz. ^ Ecolesiasticarum personarum et 
omnium derioorum et rerum eorum justitiam et potes- 
tatem et distributionem bonorum ecclesiasticorum in 
mania episcoporum esse perhibeo et confirmo. Si vero 
(i. e. episoopus, abbas, vel alia ecdesiastica persona,) 
morteprae occupatus fuerit,prosalute animee ejus ecclesiee 
consilio eadem fiat distribution^ (A). i. e. ^^ The jurisdictioli 
and power over ecclesiastic persons, and all clerks, and 
their property, and the distribution of ecclesiastical 
goods, I declare and confirm to be in the hands of the 
Bishop. But if any one (i. e. bishop, abbot^ or other 
ecclesiastical person) sbaU be prevented by death (i. e. 

(g) The Kings of England the Second, to the Archbishop of 

womd sometimes allow the will Caxiterhvayfliberefacereiestamen- 

of an Ecclesiastic to be fulfilled, turn. Even so late as the Grava- 

In 1199» John sent a writ to his mina, (vide infra,) they persisted 

justices and sheriffi, directing in not permitting bishops' execu- 

that the will of Hubert, the tors to administer. Matt. Paris. 

Archbishop of Canterbury, should Additamenta, 22, 1 1 20. 

notbeinfruiged.Spelman, Codex* (h) Ricard. Prior Hagustald, 

In the Cotton Library, Galba IV., c. 3 14. 
occurs a carta licencia from Henry 



28 INTRODUCTION. 

from makiiig his will), let the same distribation be 
made for his soul^s health, by the advice of the 
Church/^ 

Stephen distinguished the bishops and abbots by- 
name, as he himself by this charter released his own 
claim to their estates in case of intestacy, at the same 
time that he prohibited the contmuance of the abuse on 
the part of his subjects against ecclesiastics of the in- 
ferior orders. 

This charter did not affect the laity, with regard to 
whom no alteration was made in the law. 

We are now approaching the time when this pri- 
vilege was extended into a general power over lay in- 
testates' estates. It would not perhaps be very far 
from the truth to assume this revolution to have been 
greatly indebted for its success to the active co-ope- 
ration of the people, a supposition which will not be 
considered strange by those readers who have paid at- 
tention to the events of the reign of Henry the Second, 
and particularly to the memorable struggle of Archbishop 
Becket, in which the latter appears not only as the advo* 
cate of the exclusive rights of the Church, but as the 
friend, also, and defender of the democratic or English 
portion of the community against the lawless despotism 
of its Norman masters. 

But the origin of this jurisdiction as an ecclesiastical 
right is in England so closely connected with the rise 
and progress of the Roman civil law, that we may 
almost be justified in regarding the mere introduction 
of the latter as ita indirect cause, although other cir- 
cumstances may have concurred in favouring the pre- 
tensions and assisting the endeavours of the church 
towards the attainment of that end. One of the most 



INTRODUCTION. 29 

powerful of these concurrent circumstances was the 
aiiohiq>iscop&l mandate^ which inhibited clerical persons 
from interfering in secular affidrs^ or accepting the 
office of judge or advocate in temporal causes (t). 
The active minds of the English unbeneficed deigy 
bdng thus forcibly removed from the study of their own 
municipal laws and customs^ in which their energy had 
been conspicuous at an eaily period^ sought refuge in 
Ae rich treasures of the imperial jurisprudence^ the 
principles of which were not only more oongemal with 
their previous habits of thinkings acquired in the study 
of die canon law, but at the same time afforded greater 
scope for their powers of application and industry. It 
will not, therefore, be out of place to trace its establish- 
ment in this kingdom, concerning which a multitude of 
curious facts have been collected by the learned Selden^ 
in die dissertation printed at the end of his edition of 
Fleta (f). Upon his authority I have chiefly relied for 
the following observations. 

The first traces of its revival are mentioned by John 
of Salisbury^ who relates that the Jnatinianeum Carpus, 
and the other collections of law, were brought into 
England some time in the course of Stephen's reign : 
viz.^ between the yeara 1136 and 1154, at the same pe- 
riod that the Emperor Llothaire instituted a lecture for 
tiieir explanation at the University of Bologna. He 
records the violent opposition which the civil law then 
met with^ and which indeed it seems to have been fated 
ever to meet with in England, although the largest 
portion of our statutory enactments and judicial dicta 
have been drawn firdm its principles (A:). But the words 

(i) Spelinan, Cod. The synod (Ir) Polycratic. lib. 8, c. 23. 
at Westminsfer, 3 Hen. I. 



30 INTRODUCTION. 

of our author are eurious enough to be quoted at large. 
^^ Alios Tidi qui libros legis deputant igni nee scindere 
yerentur si in manus eorum jura perveniant aut canones. 
Tempore r^[is Stephani a regno juss® sunt leges quasin 
Britamuam domua yenerabilis patris Theobaldi Britan- 
niarum primatis inciverat. Nequis etiam libros reti- 
neret edicto r^;i9 prohibitum est^ et Vacario nostro in- 
dictum silentium ; sed Deo faciente eo magis virtus 
legis invaluit quo earn ampUus nitebatur impietas infir- 
m&re"(/)* A portion of our quotation completely refutes 
the common assiertion that the usurping CSount of Blois 
warmly advocated^ or timidly succumbed to, the am* 
jbitious pretensions of the clei^. By prohibiting the 
teadbing and practice of the imperial jurisprudence, he 
effectually damped any attempts on their part to found 
a new jurisdiction respecting intestacies, by consoli- 
dating this branch of law with their recognised authority 
in testamentary disputes and subtractions of legacies (m). 
The ill-judged edict of Stephen appears to have been 
relaxed on the accession of Henry the Second. This 
may be even gathered from the words of John of Salis- 
bury, already quoted, but we may also doubt whether 
so absurd a proceeding could at any time have been 
actually carried iiito effect. 



(I) Diasertatio ad FleUm, c. 7, quut et immortalit memorias 

B. 3» p. 508, edit. 1^85| Lond. Doctor Rogerus," of the succeed- 

Tfaji edict or regal proclamation ing glossators on the civil law. 

of $|«phen is referred to by £to- At the same time also flourished 

ger Bacon in his Opus Minus, on the Continent a cloud of 

(m) This lecturer was Magis- learned men: viz., Irverius, Mar- 

ter Vacarius or Vicarius, a Lomr tinus, Jacobus, &c., whose unre- 

bard. The date of his arrival mitting labours, assisted to throw 

in this country, and oonsoquently a steady and increadng li^^t upon 

of Stephen's order, is fixed by the the purpose and meaning of the 

chronicle of Normandy under the ancient Roman law. Dissert, c. 8, 

year 1149. He is the '*anti« s. 2. 



INTRODUCTION. 31 

The first result of this new stody appeared m the 
clergy taking up the neglected subject of last wills, of 
which instruments they established depositories, and b^ 
came the sole judges in all controversies respecting the 
execution or contents. It is well known that in suc- 
ceeding ages file nation has owed a de^ debt of grati- 
tude to the clergy for their maintenance and defence of 
the fireedom of testamentary disposition, which then 
was, and for a long time subsequent continued to be, 
an utter exile from the Royal Court (n). 

The piiyil^ was still imperfect, for it only embraced 
the legatary estate, orportio deJuncH, and not the remaon- 
ing part, which tiie testator was unable to alienate if 
he died leaving a wife or children surviTing him. The 
consequent necessity, therefore, of ascertaining the 
whde amount of the deceased^s property before any be- 
quest could be safely disdiacged, would to so great a 
degree incommode the Court, if it rigidly kept itself 
trithin the prescribed limits, that it would soon be 
tempted to overstep those restrictions, and at the 
request of the suitors interfere with the distribution of 
the legitimate or reasonable parts of the indispositive 
estate* From the convenience of the Ecdesiastical 
Court being local, and in general near at hand, the be- 
foiementioned usurpation, if it may be so called, would 
be overlooked, if not openly encouraged, by the peoj^e 
at large, and there would be little difficulty in superin- 
ducing upon this drcumsciibed authority a more oomr 
plete and ext^oudve jurisdiction. 



(s) The ezamplei however canon laws which exlEted in Lon- 

fodiih it mj^t he, was imitated don to he permanently dosed. 

S Henry lU^ who commanded Dissert, c. 9, s. 2. 
the schools of the civil and 



32 INTRODUCTION, 

This partial distribution we may therefore conjecture 
was not slow in growings under the fostering hands of 
the church ; and^ in spite of old and positive law to the 
contrary^ it was enlarged into a general power over lay 
intestates' estates. 

The Barons were^ however^ not disposed to yield this 
prerogative to the churchy and they accordingly main- 
tained a warm opposition throughout the reign of Henry 
the Second^ their endeavours being sure of the appro- 
bation of their royal master, who was at all times too 
determined even to oust the church from its legal and 
substantive rights not to offer a firm resistance to what 
appeared in his eyes as an aggressive innovation^ having 
its sole foxmdation in the silent wishes or consent of the 
then degraded Englishmen. 

Things continued in this state in England until the 
death of Henry. But in the second year of his suc- 
cessor a most important alteration was effected in the 
existing laws of Normandy^ which prepared the way for 
a corresponding change in the legal constitution of this 
country (o). On the departure of Richard for the Holy 
Land, a composition was made in Normandy between 
the clergy, represented by Jean de Coutances, Dean of 
Rouen, who acted in the absence of Gaultier, the arch- 
bishop, and nearly all the bishops of the province on 
the one side, and Ghiillaume Fitzraulf, the seneschal, 
and the barons on the other; and the results of 
this arrangement were communicated to the world in 
an instrument drawn up by the clergy, in perpetuum 



(o) Matth. Paris, 135. Watts' 1761. Histoire Ecclesiastique de 

edition, lub. anno 1 190. Radulf. la Province de Normandie par un 

de Diceto Ymagines Historiarum, Docteur de Sarbonne, vol. 4. 
c. 658. Matth. Westmonast. p. 



INTRODUCTION. 33 

fnemariam ret (p]. Among the rights which the lay 
lords then yielded to the church are enumerated the 
following : tiz., '^ Item distributio eorum quae in testa- 
mento relinquuntur auctoritate eodesisB fiet^ nee decima 
purs ut olim subtrahetur. De bonis vero clericorum. 
etsi dicantur fuisse usurarii^ vel quocunque genere 
mortis preyenti, nihil peitinet ad secularem protes- 
tatem, sed episcopali auctoritate, in pias causas distri- 
buantur. Si quis vero subitanea morte^ vel quolibet 
alio fortuito casu prsoccupatus fiierit, ut de rebus suis 
disponere, non possit, distributio bonorum ejus eccle* 
siastica auctoritate fiet f* i. e. Also the distribution of 
such things as are left by will shall be made by authority 
of the churchy nor shall the tenth part, as formerly, be 
deducted. But with respect to the goods of clerks, 
though they may be said to have been usurers, or to 
have incurred any kind of death, nothing appertaineth 
to the secular power, but they shall be distributed by 
die bishop's authority for pious purposes. But if any 
man be overtaken by sudden death, or any other for- 
tuitous event, so that he may not dispose of his effects, 

(p) Tliis curious document is lielmum filium Radulphi Senes* 

h^ed ** The Clergy of all Noi^ callium Normannise, super qui- 

mandy to all the faithful in Christ busdam capitulis de quibus eccle- 

greeting, (Omnibus Christi fide- tia Dei conquerebatur sub pre- 

nbiu clenu totius Nonnannite sa*- sen tia nostra et baronum domini 

lutem). It then states the parti- Regis, assentantibusquoque quani 

culan of the transaction, and its pluribua Normanniee ministris, 

objects, in the following words : hoc tandem fine conquievisse." 

*' Ad universitatis vestrse notitiam Fitzraulf had full power from 

volumus pervenire contentionem Richard to make this composition, 

motam inter matrem nostram, and for that reason Matthew of 

Rothomagensem ecclesiam pro- Paris represents Richard himself 

curante earn in absentia reverendi as making it (p. 1 35). " Glorioso 

patris nostri, W (alteri) Archie- Rege Ricardo annuente et omnia 

piacopi J (ohanne) de Constantiis disponente." 
Aothomagensi Decano et Wil- 



34 INTRODUCTION. 

the diatribution of his goods shall be made under the 
authority of the church. 

A concession similar to that made by Stephen in this 
country to the church had occurred a short time pre- 
viously in Normandy^ and it speedily produced the 
consequence I have just mentioned. In the £rst year 
of his reign, Richard Coeur de Lion, amongst other 
favours which the welfare of the church, in '^ the last- 
mentioned country clamorously demanded of him, 
granted the following claims : viz., that the testaments 
of clerks should be executed, and the goods of those 
who died without having disposed of them should be in 
the custody or power of the bishop, in order to their 
being employed in pious uses'^ {q). 

It is a remarkable circumstance that the concession 
of Stephen, though made Qonsiderably earlier, was des- 
tined to produce the same effect in England at a later 
period, and after a much longer interval of time. 

No sooner, however, was Ridiard dead, and the per- 
jured conduct of his successor had aroused all the 
energies of the barons to the defence of their peculiar 
privileges against the extortion and rapacity of that 
despot, than the church also beheld itself sufficiently 
strong to exact the confirmation of this prerogative under 
the seal of the most solemn charter on record. It 
forms the 27th section of Magna Charta ; viz., '^ Si aliquis 
liber homo intestatus decesserit, catalla sua per manus 
propinquorum suorum et amicorum suorum, per visum 

(q) Histoire ficclesiastiquc de etre employes en pieux usages. 

Normandie, toI. 4. Les testa- The circumstances of the times, 

mens des cleres seront execute, and the system of extortion prac- 

et les biens de ceux qui seront tised against the church, were ex- 

deced^s sans eu avoir dispos se- acdy £nilar in both countries, 
ront en pouvoir de Teyeque pour 



INTRODUCTION. 35 

eodesue distribtiantar, salvis cuicunque debitis quae de- 
functus ei debebat.^' i. c. *' If any £reeman dies in- 
testate, his chattels shall be distributed by the hands of 
his kinsmen and friends, under the yiew or supervision 
of the church, saving unto every one the debts which 
deceased owed him.^^ The words of the charter are 
explicit, and, as I shall attempt to show, define not only 
the character and limits of the abstract right, but also 
evince the particular agency by which it should be ex^ 
erdsed and carried into practice. 

The imjH*ovement which this transfer of authority 
from secular to ecclesiastical hands effected in the cir- 
cumstances of the people at laige will be better esti- 
mated by taking a Imef survey of the state of things 
whidi preceded it Hitherto the lord^ on his tenant 
dying intestate, seized the whole of his personalty, 
without troubling himself either with the payment 
of the debts or the distribution of any portion of 
the property amongst the near relations <tf the intestate. 
We haive already seen when this gross abuse first re- 
ceived a ciieck in the dominions of the King of England, 
but in France it subsisted to a later period, and was, 
along with other incidents of the feudal tenure, given 
away or released at pleasure by the lord, under the title 
of ^^ intestatic?* and ^^ intesteic^' (r). We have also 
seen tiiat abundant traces of it existed in the times after 
the conquest in England, and the citation fix)m Cnut's 
laws, in its inhibitory clause, is evidence that the at- 



(r) Decret. Greg. IX« 3, 26, quest to charitable purposes. Du- 

17. By which the biahop is di- cange in Voce Intestatus^ and the 

reeled to compel by ecclesiastical charters therein quoted, dated 

censore the performaace of a be- 1228^12501 1292. 

d2 



36 INTRODUCTION. 

tempt had been made in this country long before that 
era («). 

The church, however, was the indirect, though inno- 
cent, author of this evil. The clergy had been forbidden 
by several general councils to administer the eucharist 
to any dying person who refused to leave the usual 
canonical bequests of alms to the poor ; an intestate 
who could thus betray his want of charity on his death- 
bed was considered damned, and became classed with 
the wilful suicide, orfelo de ae. To die unconfessed and 
intestate were synonymous terms, as no priest, in an 
age when all the learning belonged to the clergy, could 
receive and reduce into writing the last will of a person 
whose sins he was forbidden to release by reason of his 
contumacious and sinful neglect of the leading precept 
of Christianity, which the canons had thus attempted 
to enforce (/]. 

The feudal lords most willingly availed themselves of 
these consequences of intestacy. But they soon 
omitted to make the distinction which the church had 
always maintained between the wilful intestate, who, 
though possessed of ample leisure before his death, to 
have enabled him to make the requisite charitable be- 
quests, declined to do so (t<), and the merely unfortunate 

(s) Ducange, as before. The siones integre et recte remaneant 

*^Reg%am Mtnettatem" lays it heredibus suis et generi suo." 

down as a rule of Scottish law But Saint Louis destroyed the 

that <' cum quis intestatus decedit abuse altogether by his statutes : 

omnia cataUa domini sui erunt," " Mes se u mouroit de8(;onfes de 

lib. 2, c. 53. mort subite, la justice ne la seig- 

(0 Louis the Seventh, in a char- neurie ne auroit riens/' (Du- 

ter to the inhabitants of RocheUe, cange, as above.) 

grants to them the privilege that, (u) Samson, Abbot of Berry, 

when a man dies, testate or intes- would not permit the mortuary (a 

tate, *' omnes res ejus et posses* horse) of Hamo Blundus, a rich 



1 

INTRODUCTION. 3? 

man^ who being OTertaken by a sudden or violent end, 
had been forcibly disabled from making a testamentary 
provision of any kind. Under the pretence of felony, 
the feudal lords appear to have seized the estates of all 
tenants dying intestate, without discrimination. 

I may, therefore, recapitulate the leading causes and 
motives of this revolution as follows : viz., the diver- 
sion of the studies of the clergy from the law of their 
country to the imperial constitutions of Rome, their 
natural desire to rescue the estates of those of their own 
order who died intestate from the rapacious clutches of 
their feudal lords, and to apply them to the general 
benefit of the church of which they were members ; 
and, lastly, an anxiety to recover, even in intestacies, 
the alms which the canons made it incumbent on all 
the fidthfiil to bequeath, according to their degree, and 
by those means to supply the defect of charity in cases 
where the hand of God had prevented such a dispo- 
sition. These were the sufficient reasons which urged 
the church in its endeavour to acquire the control of 
the general personalty of the kingdom, whether belong- 
ing to its own peculiar subjects, or to the laity. The 
feelings of justice in the one case, and of aggrandize- 
ment in the other, would strongly impel them in this 
course, while their ample and uninterrupted leisure 
afforded every convenience for the full development 
and completion of any proceedings necessary to the 
attainment of that object. But the time was not yet 
arrived when the church could possess this right in 



man of that town, who had died saint, saying these words : " Noa 

nearly intestate, (v. post,) to he decet enim ecclesiam nostram 

led before the shrine of St. Ed- coinquinari munere ejus, qui de- 

mnnd, and there offered to the cessit intestatus.'* 



38 INTRODUCTION. 

quiet and undisputed enjoyment. Even after the 
solemn sanction of the great charter, the Court and the 
barons still maintained the old struggle, and the jealousy 
continued to so great an extent that the clause of Magna 
Charta before quoted was omitted in the confirmation 
of that fiunous instrument which the third Henry 
granted in the ninth year of his reign (1225). That 
the omission was intentional Is amply shown by the 
remonstrance of the deigy many years after, when this 
and other injustices perpetrated on the church were 
openly and boldly represented to the Court. This ex- 
cites surprise how a celebrated advocate of the civil 
law, in alluding to this circumstance, can have expressed 
his sense of the omission in the following words : — 
'^ The thirty-second article of the Magna Charta ex- 
torted from King John expressly provides against 
them, (i. e., the asserted abuses practised by the ordi- 
nary ;) but His a curious fact, and one which strongly 
marks the influence of the papal power in Englund at 
that period, that tiiis article was wholly omitted in the 
Magna Charta, Henry III.^' (x). The explanation is 
still more curious than the fact, and is, I think, so &r 
from marking the papal influence at that time, that it is 
pregnant evidence of a determined and uncompromising 
hostility against its claims. 

The clergy, however, were resolved not to give up 
their prerogative. In 1257> after representing the 
abuses which prevailed, they exacted a solemn promise 
fit)m Henry III. to restore the church to its pristine 
condition. And, upon the faith of his assurance of 
redress, they drew up a protest against all their ^^gra- 

(j) Pbillimore*8 Ecdesiast. Rep. vol. 1, p. 124. 



INTRODUCTION. 39 

wunmOy^^ or grievances, contained in fifty prohibitory 
artides^ tihe infraction of any of which they denounced 
by a threat of Ae extreme censures of die church (y). 
lliese articles are denominated by Matthew Paris, 
^Articcdi observandi per provisionem Episcoporom 
An^ce.^^ Each article is meant to form a remedy for 
the eril detailed in a corresponding section of the 
^QrwDomiMp to which it constitutes an appendix. 
Our graoamen forms the twenty-fifbh section: vis., 
''Item morttto laico intestato dominus rex et cseteri 
domini feodorum bona defimcti sibi applicantes non 
permittunt de ipsis debita solvi, nee residuum in usus 
liberorom et proximorum suorum, et alios pios usus per 
loci ordinarium quwum (q. cujus)\ interest aliqua con- 
vertL^' i. e« Also, when a layman dies intestate, our 
Lord the King, and the other lords of fees, appropriating 
to themselves the goods of the deceased, do not permit 
the debts to be paid thereout, nor the residue employed 
for die use of his children and next of Idn, and in other 
jnous uses by the ordinary of tiie place whom it con- 
cerns." 

The artide, while it denounces, also states the abuse 
in more particular terms ; viz., '^ Quandocunque etiam 
laicis intestatis decedentibus domini feodorum, non per- 
mittunt ipsorum debita sdvi de bonis mobilibus eorun- 
dem, nee in usus liberorum suorum et parentum vel 

(y) Matth. Paris, (Dr. Watt's approbatione inferiorum prela- 
editioii,) p. 1816. Additamenta torum, capitulorum cathedralium 
** GraTiHima €t Artieuli." The et conyeDtualium, nee non uni* 
one, as its name imports, is a ca- versitatis totius cleri Anglise pro 
talague of grievances, and the reformatione status ecclMiae An- 
other is the antidote. The arti* glicann et reparatione ecclesias- 
cles state themselves to be a ticae libertatis, hac prsedicta corn- 
general act of the clerical body, muniter et concorditer provide- 
•ecolar and regular. '* Archie- runt" 
piscopi et episcopi de consensu et 



40 INTRODUCTION. 

alias per dispositionem ordinariorum pie distribui pro 
defunctis^ providemus ut moneantur dicti domini^ et 
eorum ballivi ut atalibus impedimentis desistant^ et 
monitionibiLS non parentes (saltern pro illaportione quae, 
defunctum contingit) per excommunicationis sententiam 
compescantur/^ " Also^ whenever, on laymen dying in- 
testate, the lords of fees do not allow their debts to be 
dischai^ed out of their chattels, nor the same chattels 
to be piously distributed in favour of his children and 
relatives, or otherwise by the disposal of the ordinaries 
for the benefit of the deceased person, we provide that 
the said lords and their bailiffs be admonished to desist 
firom such hindrances ; and, in case of their not obeying 
the monitions (at least so far as regards the portion 
which appertains to the dead,) that they be restrained by 
the sentence of excommunication/' The estates of the 
bishops and clergy had not escaped the general pillage, 
but in providing a remedy for the more extensive abuse 
practised against the property of laymen, the church 
was assured of equal redress in its own case. 

The articles, as might be expected, did not produce 
the desired eflfeot. A few years after their date, at a 
provincial synod celebrated at Lambeth (1260), Boni- 
face, who then held the arohiepiscopal see of Canter- 
bury, had recourse to the enactment of the constitution 
afterwards known by the appellations of ^^ Siatuium de 
Lambeth/^ or '* Qeterum coniingU interdum/' from its 
first words (z). The expres$ions are nearly verbatim 
the same as in the article before quoted, and the only 
difference appears to consist in the complaint being in 
the former case against practices of general, and in the 

(i) This constitution forms a Stratford. Lynd. Prov. lib. 3, 
recital in one of Archbishop tit. 13. 



INTRODUCTION. 41 

latter of only occasional occurrenoe« Bat the Arch- 
bishop will speak for himself: — '^ Coeterom contingit 
bterdnin quod laids aut clerids diyino jndido deceden- 
tibus intestatis^ domini feodorom non pennittant debita 
defunctorum solyi de debitis mobilibns eonmdem^ nee in 
usas nxonim suarom, liberorum suorum^ yel parentom 
Tel aUter per dispositionem ordinaiiorum bona pro- 
dicta pro ea portione qiUB secundum consaetadinem 
patriae defnncd contingit, permittimt distribni pro 
eisdem/^ L e. ^ But it be&lleth sometimes that, when 
laymen or clerks by the divine jndgment die intestate, 
the lords of fees do not permit their debts to be paid 
oat of their chattels^ nor allow the aforesaid goods to 
be distribated for them^ for the ose of their wiyes^ 
diildreD, or rektiTes, or otherwise^ by the disposal of 
the ordinary, according to the portion which, by the 
coBtom of the country, appertaineth to deceased per- 
sons.^ 

The next important notice which I find of the subject 
is contained in the constitutions of Cardinal Othobonus^ 
who was Legate of the Holy See in this country daring 
the year 1268 (a). That prelate prefaces his canon with 
lemarks upon the propriety of a partial distribution of 
the estate of a person who has been unfortunate enough, 
in his Tiew, to die intestate in charitable or pious uses, 
auch as may intercede for his soul before the heavenly 
judge. He then re*enacts the articulus before men- 
tioned, designating it a provision formerly made by the 

(a) OtfaobonusorOttoboni, Car- don, on the 93d April, 1268, the 

dmal Deacon of Saint Adxian, in fourth year of the pontificate of 

hii legatioe capacity, assembled Clement Four. The Archbishops 

a general council of the bishops of Canterbury and York, fioni- 

and clergy of England, Scotland, face and Walter, were both pre- 

Wales, ukI Ireland, in the Cathe- sent Lynd. Prov. de Constit 

dral Qiurch of Saint Paul, Loo- lib. 1, tit. 2, m noin. 



42 INTRODUCTION. 

prelates of tliis realm. His own words are^ ^' Ptovide 
saper bonis deoedentimn ab intestato provisionem quae 
olitn a prelatis Hegni Anglias cum approbatione regis et 
baronum didtor emanasse, firmiter approbantes dis- 
tiicte inhibemus ne prelati vel aUi quoconque bona in- 
intestatorum hujusmodi quocunque modo recipiant vel 
eeoapmt contra provisionem pr»dtetam^ (i). 

It is very cmioos that this obvious reference to the 
articuU has been equally misunderstood by the early 
and the later glossers on tiie legatine constitutions. 
John of Athon, or Acton (c), who is supposed to have 
during the fourteenth c^ntury^ refers to an 



{b) Comtitationes Legatine, recited in the text. The first, on 

Sbamck's edition, p. 90, tit 24, the words "a prelatis regni," is 

"de bonis intestatorum/* The as follows: — " Discretam et ordi- 

constitution begins, " C!um mor- natam provisionem in pMarlamento 

tis incerta nraeoccupatiov si an- regni debere primarie incipere a 

ticipet ultimi arbitrii voluntatem, prelatis maxime super contin- 

ut conficiendi testament!, yel ex- gentibus open pietatis, cum haec 

tremc dispositionis adimat vitse proyisiofueritparlamentalis,"&c. 

decisio facultatem, agit humana The second, on the words " cum 

pietas miserecorditer in defiinctiim approbatione regis ;** viz., ' ' Scili- 

cum res temporales quae illius cit illustris Eduwardi, post con- 

Hierunt per dispositionem in pios questom primo, convoeato suo 

nans ipeom iuyando sequerentur concilia apud Gloaoesler anno 

et coram coelesti judice pro ipso regni sui sexto, ipsis quidem 

propitiabiiliter intexcedant, pro- ibidem statutis post modum in 

yidi," &c. pleno parlamento suo ad West- 

(c) John de Athona, or of Ac- monast revocatis post Pascha, 
ton, aroears to have flourished anno regni suo xiii. abi in iUius 
some time in the fourteenth cen- parlamento xix. c. sic legitur cen- 
tury, but his exact age is uncer- tineri. Cum post mortem ali- 
tain; and he afibrds no^partieu- cujus decedentis intestad et obli- 
lars respecting himself except eati aliquibus in debita bona 
that he was a canon of Lincoln aeyeniant ad ordinarium dispo- 
Cathedral. He must have been nenda, obligetur de csetero ordi- 
living after 1285, as he quotes nanus ad respondendum dedebito 
13 Edward I., and before the quatenusbona sufiBciunt, eodem 
frtrfigative of Uie Archbishops of modo quo executores respondere 
Canterbury and York in testa^ tenerentur si testaxnentum fuis- 
mentary matters bad been legally set." The edition quoted from is 
recognised. John of Athon has the Provmciak, pnnted by Jo- 
two notes upon the constitution dacus Badius, at Paris. 



INTRODUCTION. 43 



act of Fsriiament, passed in the math yemr of die reign 
of Edward I^ tbe enactments of which^ he asserts^ were 
lAerwarda revoked by the statute of Westminster. As 
there exists^ however, no vestige of such an act^ and 
the reference is contained in a constdtdlion j^uwed 
in the reign of Heivry III., we may fairly oonolade 
that file Canon of Lmoohi was mistd&en in hi* inter* 
pretation. The expressions also used by the Legate 
eannot be fidrly construed into an allusion to a parUa- 
mentary enactment^ which the Italian priest would have 
known as well as any modem statesman, could never be 
said to have emanated firom the bishops with the sanc- 
tion of the king and lords. Dr. Sharrook, the editor of 
Lyndewode's Promnddk, adopted a somewhat similar 
anachronism to t^t of John of Athon, and applied the 
words of the constitution to the well4aiown ISth Ed- 
ward I. (1285), a statute passed d)out seventeen years 
subsequently. Blackstone, with equally good success, 
dreams about the charter of Henry I., and Bishop Qib- 
son confesses his inability to discover what provision 
Othobon alluded to (d). 

We now begin to fall into the beaten track of quo- 
tation, and arrive at the celebrated IS Edward I., 1285, 
(commonly called the statute of Westminster,) the con- 
tents of which, though so well known, I shall make no 
scruple of reciting, in order that I may be better enabled 
to point out what I consider its meaning and relation : 
^^Cum post mortem alicujus decedentis intestati et 
obligati aliquibus in debito, bona deveniant ad ordina- 



{d) Comment, toI. Z, book between the statute, as quoted 

3, e. 7. Gibson's Codex, p. by John of Athon« and the com- 

572. The reader wiU cdiserve mon edition. 
th«t there is a verbal difference 



44 INTRODUCTION. 

rios diaponenda, obligetxir de coetero ordinarius ad re^ 
spondendum de debitis quatenus bona defoncti sufficiunt 
eodem modo quo executores hujos modi tenerentur si 
testamentum fecissef i. e. ^ When, after the death 
of any person dying intestate, and bound unto some in 
debt, the goods come to the ordinary to be disposed of, 
the ordinary shall from henceforth be bound to answer 
for the debts, so far as the goods suffice, in the same 
manner as executors would be obliged to answer in case 
he had made a wilL^' 

But to enable us to form a just opinion of ihe bear- 
ing of this statute, it will be necessary to premise a few 
words respecting the ancient mode by which the dispo- 
sition of personalty was regulated* 

By a principle of law which the nations of Europe 
appear to have borrowed from the Roman empire, every 
person was limited in the disposal of his property, 
whenever he died leaving a wife or children. But if 
unmarried and childless, he was left at ftdl liberty to 
give away the whole of his estate in whatever manner 
he might choose. 

This custom appears to have prevailed in England at 
a period before the Norman Conquest, as it is found 
amongst the incidents of tenure in Gravelkind,(e) which 

(e) Custumal of Kent, at the vyse Tautre meytie/' The civil 
end of Robinson's — "Common law forbade the disinheritance not 
Law of England, or the Customs only of the children of the testa- 
of Gavelkind:" — '' Ensement soit tor, but even extended its prohi- 
les chateux de gavelkinde partis bition to ascendants, as parents, 
en tres apres les exequies et les grandchildren, and great grand- 
dettes rendues, si il y eit issue children ; and, amooe collaterals, 
mulier en vye, que le mort ey t la brothers and sisters had also the 
une parte, et les fitz et les filles same civil charge upon his estate, 
muliers Tautre parties, et la fem- The widow, however,had no claim 
me la tierce parte. Et si une of this kind. This right was de- 
issue mulier en vye ne soit, eit le nominated **legUima** or "ir^ima 
mort la meite, et la femme eu pan,*' and its omission by a testa- 



INTRODUCTION. 45 

is miiyersally considered to be a relic of the general 
system of Saxon law, and not the peculiarity of one 
county only. The portion which a testator might dis- 
pose of by his will was denominated the portio de/uncti, 
or in English the *^ dead man^s part,'' and at the time 
the act 13 Edward I. was passed, and long after, that 
portion and the corresponding inalimable estate were 
regulated in the following manner. 

If the testator left behind him a widow and children, 
lie was allowed to bequeath only one third of his pro- 
perty; if he left only a widow, or only children, he 
might dien dispose of a moiety. In either case, the re- 
maining portion of his estate devolved as matter of 
right to the wife or children, under the designation of 
their reasonable parts {partes rationabiles), for which 
they had dieir action at common law. 

The same division prevailed where the subject was 
the estate of a person dying intestate ; for, as in the 
former case it was held that a man could only dispose 



tor, wbetber partial t>r entire, was made not by force of the 

was sapplied by an action, in the common law of tna realm, but 

€»e case, " m repktwnem legiti- only by force of custom." (3rd 

ms,*^ and in the other, "de in part, s» 1*6, p. 104, edit. Lond. 

€ficioto testamento," by ihe latter 1590.) Iliere is no doubt, how- 

of which the wHl would be partly ever, that it was once the general 

annulled. (Justin. Insttt. ub. 2, law. Fleta makes the present 

c. 18.) The principle of law be- law the exception, and lays down 

came obsolete in England as late the former as the general law: 

a» the period of the Common* ** Nisi sit consuetudo quae se ha* 

wealth, and was never since re- beat in contrarium, sicut in civi- 

▼ived. (Blackstone's Comment tatibus bums et villis." (Lib. 2 

book 2, c 32). Swinburne in c.57.) AndMagnaCharta,9Hen. 

his time speaks of it as a custom, III. c. 18: ** Omnia cateUa ce- 

*' not oneley throughout the pro- dant defuncto, sidvis uzoriejus et 

lince of York but m many other pueris ipsius rattonabilibus parti- 

piaces besides, within this realm ous sals." The writ de rattona- 

af England." Though even then« bili parte bonorum. (Cowel, edit, 

he rdatesy it was maintained by Ozon, 16M. 
some lawyers, that, '' the division 



46 INTRODUCTION. 

of a section of his properfy^ even if he made a will, so 
by the oonyerse proposition he was considered capable 
of dying intestate only so fitr as regarded the same por- 
tion (/)• The dear residuum^ after the payment or 
deduction of the debts and reasonable parts, before the 
jniisdiction was vested in the ecdesiastical ordinary^ 
was claimed as his dne by the king or feudal lord whose 
tenant the intestate had been while alive ; but, on the 
foQxidation of the ecclesiastical authority, the parHo de- 
ftmeti devolved to the ordinary for his (fistribntion and 
disposal {ff)d 

An andent ^bss informs ns that the ordinary distri- 
buted that portion of property in such pious and chari- 
table uses as he might conjecture that affection or duty 
would have dictated to the mind of the intestate if he 
had been enabled to have effected his testamentary 
arrangements (A). What these pious uses were will 
appear in the course of this introduction. This division 
of an intestate's estate may still be traced in the peeuf- 
liar customs of London and York. By the law which 
there exists^ an estate is, under these drcumstances, 
divisible in the following manner, if the intestate leave 
a widow and children, viz. one third to the widow, 
another third to the children, and the remaining third 
between the widow and children, agreeably to the pro- 
portions laid down by the statute of distribution as the 
genend law of the realm. But to return : — ^It appears 
from the terms of the IS Edward I., that before its 



(/) DucangOy nib voce Iniei* tarn," adds " bc parlamentalem 

tstai. omoio reoduo ribi ntdhttenuf, 

(g) John of Athon, in hii iiota imbanttDdo, aed potius jiocta de* 

on the conttitutioD of Othobon, functi propodtum conjectfiraCuni 

before referred to, at the words in pioa uaua diatribuetidow" 
" eontra proviaionem prsdic- (A) 1 Jac 2» eo. 17* 10. 



INTRODUCTION. 47 



enactment the distributiye portion of the oidinaiy in 
the above cases was a third or a moiety of the gross 
amount of the intestate's pcarsonaliy^ wiiihout making 
any deduction for his debts* The origin of this prao* 
dee may be ex^dained as fdUows : the ordinary required 
the intended administmtor to swear to the gross anxmnt 
of the property without deduction of any kind^ and^ 
having this estimate before him^ calculated the share de^^ 
▼oiying to him for distribution at a third or moiety of the 
actual estate, not malriiig a proportionate drawback for 
tibe intestate's debts. 

Against this inoonyenient proceeding on his part the 
act under consideration must have been intended to 
constitute a remedy. Its provisioas went to chaxge the 
cxdinary's portion with the payment of the whole of 
the debts of the intestate. But this^ if it had been 
enforced^ would have had the eflfect of absolutely nulli- 
fying in most eases the charitaUe use to which that 
portion was in part destined^ as it may be supposed 
that in general the debts due by the deceased would 
^ther considerably diminish it, or dse wholly swallow 
it up, and thus leave unsatisfied the right which the 
C3iurch had long possessed, as it ^were, in trust far the 
soul <^the deceased. 

Tlie English Qiurch began acoordiiigly to take suck 
remedial measves as lay in her power, in order to 
rescue this portaon from the hands of the law* In 1287 
(two years after the date of the ststote) a synod was 
held at Exeter, and the foHowing (c 60) appears 
aasongst its enaelments (^}«*-^Si qiil vero hdeorum 
decesserint intestati, de bonis eorum per locorum ordi- 

(i) Ducange, Intestatuf . 



48 INTRODUCTION. 

narios solite praecipimTis ordinari ut pro anima defuiicti 
in pioa uaoa totaliter erogetar :" L e.^ ^ If any layman 
die intestate, we command it to be enjoined by the ordi- 
naries of the place, as a custom, that the goods of the 
same be wholly laid out for the soul of the deceased." 

This constitution did not achieve the effect appa- 
rently proposed by the hierarchy, or perhaps it was 
meant merely as a bold experiment on their part, from 
which they did not contemplate an entirely favourable 
result, and we may imagine that they would be well sa- 
tisfied if they succeeded in obtaining by those means a 
modification or partial relaxation of the invidious statute. 
At all events, the speedy if not immediate consequence 
was the proportioning the distributive portion of the 
ordinary by the net value of the estate, the debts be- 
coming a rateable chai^ upon all its parts {k). 

The act declares that, in all cases of intestacy, the 
ordinary should thenceforth be answerable for the debts 
of the intestate. It did not, however, impose a respon- 
sibility for the first time ; it only gave a more extended 
application to a pre-existing liability. Previously to 
the passing of the act, we have seen that the debts were, 
in practice, chaiged upon the partes raiionabiles, as 
upon a portion independent of the ordinary's control ; 
and tiie creditors were left to recover against the widow 
and diildren, or either of them, without troubling the or- 
dinary at alL But when there were no deductions to be 
made for these reasonable parts, the whole of the estate 
became distributable under the ordinary's directions, 
and was then of course generally obnoxious to the legal 

(k) Fleta, lib. % c. 57, p. 124. of Edward II. and III. Bracton, 
The author of Fleu ii tupposed lib. 2, c 26. 
to have flouriihed in the reigni 



INTRODUCTION* 49 

diarges upon it. This latter state of things imposed a 
conesponding liability on the ordinary himself^ per* 
sonally, when he as executor legitimua administered 
sudi an estate. And in tiie event of midue waste on 
the part of his delegate, lihe administrator, the secular 
power would lend its aid in l^ally enforcing the claims 
of the unsatisfied creditors, as effectually as it was now 
empowered by the act 13 Edward I. to afford it without 
distinction in all cases of intestacy. The liabUity of the 
ordinary was therefore, except in the case before men- 
tioned, coeval with his power, and from this liability 
originated his practice of taking bond of the intended 
administrator, or rather not suffering the appointment 
to be considered complete imtil such bond had been 
given. The following remarks will explain this more 
deariy. 

In the early periods of tlie ecclesiastical jurisdiction 
the ordinary himself was the party suable for a devas- 
iavU committed by his deputy, and was left to his own 
remedy against the latter. Even at the present day, in 
case of letters of administration eid colligendum bona 
d^kncti, the action would lie against the ordinary, and 
not against the administrator, though the usual bond 
would be given previously to the grant (/). 

This responsibility of the ordinary extended at first 
even beyond cases of mere intestacy. He was, imder 
certain circumstances, liable for waste in only confirm- 
ing an executorship by the authority of his probate. 
It was in consequence of this that Archbishop Peecham 
enacted a constitution, inhibiting a religious person 
firom acting as the executor of a will, imtil his superior 

(/) Tenni of the Law, Tottel's Editioiii tuo voce Admin. 

E 



50 INTRODUCTION. 

had given bond on his behalf to render a faithful 
account of his administration^ and to answer for all 
damages that might through him accrue to the ordi- 
nary (m). 

The Archbishop^ in the same manner^ prohibited 
religious persons from accepting the appointment of 
distributor banorum or legatorumy an office of a nature 
hardly distinguishable from that of a testamentary exe- 
cutor. 

These instances of the ordinary finding it incumbent 
upon him to take security where he only confirmed a 
tide already conferred by a testator^ clearly evince what 
was his practice in cases where^ in the exercise of his 
own authority^ he actually created a title in another, 
for whose acts he became responsible at law. 

In commenting upon the portion distributable by the 
ordinary, and the supposed effect which the statute had 
in controlling his disposition. Sir Samuel ToUer (it) 
says, that in the previous 



On) L3md., lib. 3, tit. 13. idem circa hujusmodi distribu- 

" Adjiciendo duximus statuen- tionem prsecipimus observari, 

dum quod ndlus religiosus per- quod circa ezecutionem Buperiua 

mittatur executor ezistere alicu- est provisum ne aliter executioni 

jus testamenti, niii superior suus vel oistributioni hujusmodi se im- 

caveat pro suo religioso hujus- misceant sub poen& anathematis 

modi, ouod sufficienter exequatur inhibentes,'*&c. The Archbishop 

et fideuter reddat et integre ra- held a synod at Readine in 1279, 

tionem de residuis, si quae fuerint and another at Lambeth in 1281. 

et de damnis ouse peripsum emer- It does not appear from Ljnd- 

serint loci orainano abeaue diffi* wode to which epoch the date of 

cultate qualibet responaebit"-^ this constitution is referable. This 

'' Et quia non nuUi religionis ha- constitution is an extension of a 

bitum deferentes, licet non sunt former one of Archbishop Boni- 

executores tamen distributores ef- face. For Distributor^ see Du- 

fficiuntur defuncti, temeritate pro« cange, tub voce. 
pria, yel imprudentia alienft, ex (n) The Law of Executors and 

quo magnam provenire videmus Administrators, chap. 3. 
bonorum hujusmodi Isstionem, 



I 



I 



INTRODUCTION. 51 

'^ He (i. e. the ordinary) converted to his own use, 
under the name of church and poor, the whole of such 
(L e. an intestate's) property, without even paying the 
deceased's debts. To redress such palpable injustice, 
the Statute of Westminster, 2 (or the 13) Edward I., 
c. 19, was passed, by which it was enacted that the 
ordinary is bound to pay the debts of the intestate so 
&r as his goods will extend,'' &c. 

He then adds, '' Although the ordinary were now 
become liable to the debts of the intestate, yet the resi- 
due, after payment of debts, continued in his hands, to 
be applied to whatever purposes his conscience might 
approve/' 

A very learned and celebrated modem civilian has 
the following notice on the same subject (o) : — 

^ In the early periods of our history the ordinary had 
by common law the absolute disposal of the personal 
property of all intestates, and, under the pretext of 
applying their goods to religious purposes, possessed 
himself of them, not only in cases where the deceased 
left a widow and children, or other near relations, but 
in defiance also of the just claims of the creditors. On 
this footing the law continued under the Norman kings 
and the first sovereigns of the line of Flantagenet ; but 
when the firee spirit of our constitution, which had been 
long labouring under the pressure of the feudal institu- 
tions and the shackles of papal superstition, commenced 
those stni^les which ultimately led to its emancipa* 
tion, the abuses practised by the ordinary in the admi- 
nistration of intestate's estates became in their return 
subjected to correction and control. ^ ^ * ^ The 

(p) Dr. Phillimore's Reports, vol. 1, p. 124. 

e2 



52 INTRODUCTION. 

13 Edward I., at. 1^ c. 19 (commonly called the statute 
of Westminster), made the estates of intestates liable to 
the payment of their just debts/' 

These two quotations embody the opinions com- 
monly held upon the subject of ecclesiastical jurisdic- 
tion, and, if they were true, would eidiibit it in by no 
means a favourable light. They represent it as taking 
its rise from an infraction of the constitutional laws 
of the kingdom, and as rapidly acquiring growth and 
strength from a shameless system of plunder, exercised 
against private property in a manner unexampled even 
in those times of secular outrage and extortion. 

The scene of all this is laid in England, and the 
English clergy are paraded as the actors ; but there is 
no historical narrative to justify those authors in laying 
so heavy a charge against the English Church, and 
neither the letter nor the spirit of the statute before 
recited affords any ground for such a supposition, nor 
hints the least suspicion that it had ever been the fact, 
or that the design and view of the statute were directed 
to its future suppression. The assertion which both 
these authors agree in, viz. that the Church, at an early 
period of English history, was accustomed to seize the 
whole effects of every intestate, does not require refuta- 
tion : the origin of the mistake has been already suffi- 
ciently shewn. The only question that remains is, in 
what manner the portio dejvnctiy or distributable por- 
tion, was directed to be applied by the ordinary, which 
wiU at the same time explain the precise meaning of 
the disposition of property in pios usua. We have 
already seen that the portio defuncti varied with the 
difference of circumstances, and was sometimes a third, 
or a moiety, and at others comprised the entirety of the 



. INTRODUCTION. 53 

intestate's personal estate {p). The judicial method of 
disposing of it was as follows : — If necessary^ the partes 
raiionabUea were deducted, and then recourse was had 
to the ordinary for the purpose of obtaining his direc- 
tions respecting the manner and proportions in which 
the balance should be disposed of. The ordinary ac- 
cordingly allotted portions of this balance amongst the 
wife and children, if the deceased left any such ; but if 
not, amongst his nearest of kin, and finally directed the 
administrator to bestow a small and inconsiderable sum 
in purely charitable and religious purposes, for the 
benefit of the deceased^s 80ul« The portio d^ncti, 
therefore, in one case was a section of the eflfects dis- 
tributable amongst the same parties, who were entitied 
to reasonable shares, and in the other extended to the 
whole of the intestate's property. This disposition and 
the payment of debts were numbered amongst the 
pious uses to which the ordinary applied the estates 
which came under his control, and it was in order to 
effectuate such distribution, as well as to indemnify 

(p) The constitution of Boni« the rest of the effects to compen- 

fsce affords us a clear understand- sate him for his trouble. See 

me on this point (see supra), viz., also the ArtieuU and Gravamina 

"Rec in usus uzorum suarunii for the same expressions {vide 

liberorum suorum vel parentum, $upra\ and a quotation from a 

vel aliter per disposttionem or- constitution of Archbishop Strat- 

dinarionun," &c. These words ford, afterwards given, and the 

enumerate the three cases, where note. Ouehton, or rather Gierke 

a man left a wife and children, (Ordo JucGciorum, tit 219, s. 4), 

other relations only, or died with- says, " Omnis administrator te- 

out any ; for the word " aliter " netur, idonee cavere • • • • 

refers to the last. Ducange, in ad distributionem residui bono- 

redtinf this constitution, has rum defuncti (solutis debitis, fu^ 

omitted the whole of the above neralibus et cceteris oneribus) in 

danse, and upon this omission pios usus, vel inter pauperes et 

(aft best careless) he has grounded consanguineos defuncti iuzta ju« 

a tirade against the Church, viz., dicis aroitrium, dummodo tamen 

about the ordinaiy's paying the rationabilis portio allocetur admi- 

intestate's debts, and seeping all nistratori." 



54 INTRODUCTION. 

himself against the claims of misatisfied creditors, 
that the ordinary took bond of the intended adminis- 
trator (;)• 

This cha]f;e of extortion made against the Church 
appears die more imbomided and preposterous when 
we £nd that the exercise of this ecclesiastical jurisdic- 
tion was carried by the ordmary to so high a pitch of 
delicacy that no fee was exacted for the faculty or grant 
of administration. The only expenses to which the 
administrator was liable were incurred merely pro cpere 
et labore — i. e. for the trouble of the scribe in writing, 
and for the materials of the seal and the parchment 
employed in framing and completing the necessary in- 
strument. The possibility even of a contrary prac- 
tice was strictly guarded against by the fact of its 
perpetration being made one of the principal interro- 
gatories, which the archiepiscopal visitor, in his pro- 



(9) The concluding words of a residuaty estate left undisposed 
the bond, which is still used in of by the testator, p. 67. Hamo 
its ancient form in all cases to Blundus, described as ** unus ex 
which the statutory caution does ditioribus hominibus/' of the bo- 
not apply, are as follows : — ** And rough of St. Edmund, made a 
lastly do at all times hereafter will, by which he affected to be- 
clearly acquit, discharge, and save queath property to the amount 
harmless the within-named Lord of three marks only. This pre- 
Archbishop of Canterbury, the tence of property being contrary 
said iudge, and all other officers to the public report of his wealth, 
of the said court, against all the abbot, as ordinaiy, called for 
persons having or pretending an inventory of the effects (omnia 
to have any right, title, or ejus debita et katalla mobilia), 
interest, unto the said goods, which were in reality found to 
chattels, and credits of the said amount to two hundred marks, 
deceased, then this obligation," The abbot, therefore, decreed the 
&c. The lately published chro- following distribution, viz., one 
nicle of Jocelin of Brakelonde third portion to the brother of 
QDe Rebus Oentis Samsonis Ah- the deceased, another to his wife, 
batis Monasterii Sancti Ed- and the remainder, " pauperibus 
mundo, edited by John Gage consanguineis suis et alus pau- 
Rokewode, Esq., 1840,) gives a peribus.*' 
curious instance of distribution of 



INTRODUCTION. 55 

gress through each diocese, administered to the bishop 
himself and also to the dean and chapter of his cathe- 
dral church {s)» The same care was observed in r^;ard 
to granting probate of a will (/). 

The ordinary's power of directing and compelling a 
distribation became in the course of the period succeed- 
ing the reformation almost entirely extinct, through the 
continual enmity and attacks of tiie judges at West- 
minster, who, to their eternal disgrace, refused to en- 
force an Ecclesiastical bond against the administration 
for a distribution, thus leaving the remaining next of 
Idn entirely at his mercy. This evil was the more 
aknning, inasmuch as the ancient division of the intes- 
tate's property into the partes raiionabUea and portio 
defimcti, was no longer the general law of England, but 
existed only as the particular custom of certain bo- 
roughs and districts. By these means, the next of kin 
who was expeditious or fortunate enough to obtain let- 
ters of administration before the others became pos- 
sessed of the whole of the deceased's property, and 
though nominally boimd to the ordinary to distribute 



(f) Lvndewode, Pnnr. lib. 3, episcopi," occur the following: 

tit 13, de tettamentifl, in a con- *' Item quid fecit de bonis intes- 

•titntion of Archbishop Stratford, tatoruxn, et an aliqua de hiis sibi 

''StatuimuB utpToprobationevel appropriavit." • • • • • 

approbatione seu insinuatione tea- '* item an pecuniam pro Uteris 

tamentonun quorumcunque nihil institucionum, collacionum in- 

per episcopos, seu alios orainarios ductionum rel pro probacionibua 

capiatnr omnino, per clericos testamentorum vel absolucionibus 

tamen scribentes insinuationes ah onere administracionis cujua- 

hujusmodi sex denarios duntaxat cunque Tel ab excommunicationis 

redpi permittimus pro labore. sententia a suis ministris permit- 

(0 Cotton MSS. 4 Oalba. E, tat." Amongst the " querenda 

ioh 61. " Articuli super quibus circa episcopum " is the follow- 

inqoirendum est in visitationibus ing : " Item an bona aliqua in- 

orelatoram (of Robert Arch- testatorum in suoe usus convert! 

mshop of Canterbury.) Under the penniserit' 
head of " querenda e persona 



99 



56 INTRODUCTION. 

the effects as he should direct, could not be compelled 
to part with a single shilling, except in the payment of 
debts, although there were numbers of kinsmen in the 
same d^ree of consanguinity with himself. 

It was this proceeding on the part of the common 
law judges, which it is well known occasioned the 
enactment of the celebrated Statute of Distribution. (») 

Where the old division of property remained, as the 
proTince of York, the administrator till a later period 
applied the ^^ dead man's portion,'^ or partio defuneti, to 
his own personal use. 

The disposition of a certain portion of property to 
pious uses in the more precise and restricted sense of 
charity and almsdeeds became obsolete about the same 
time.(y) 

The next remark of our authors, that the ordinary 
became obliged to pay the debts of the deceased, owes 
its origin to the same mistake as the former assertion, 
from which it is in fact dedudble. The act itself says 
nothing about the ordinary paying debts, as if he 
himself interfered in the actual administration of the 
intestate's estate. It only says that the ordinary should 
be thenceforth responsible for the debts of the de- 
ceased, a liability in the eye of the law to which he is 



(tt) Stat. 1 Jac. 2, c. 17, s. 18. is but small use in these days, 

Blackstone's Comment. Book as well for that the residue is 

2, c. 32. It was the exaction of commonly left to the executors, 

what the next of kin considered as also for that the executors are 

too ^eat a share of the third, afraid that some unknown debt 

that IS meant by the complaint of due by the testator should after- 

Fleta, that the ordinaries — '< nul- wards arise, and so the executor 

lam vel saltem indebitam distri- be compelled to pay the same 

butionemfaciunt." (lib.2, c. 57.) out of his own purse." Sixth 

(y) In Elizabeth's days Swin- Part, s. 20, p. 235, Edit Lond. 

bourne sa^s, << of this distribution 1590. 
of the residue (in pios usus) there 



INTRODUCTION. 57 

exposed even at the present day^ and to meet which the 
ordinary formerly (as now) provided himself with se- 
curity £rom the administrator. 

I will now continue my view of &e progress of this 
branch of the Ecclesiastical Jurisdiction, At a period 
of nearly a century firom the date of Magna Charta the 
lords of manors were still disinclined to yield their old 
daim up as lost. So late as 1342^ Archbishop Strat- 
ford was compelled^ in consequence of their strenuous 
opposition to his ordinaries^ throughout the province of 
Canterbury^ to pronounce that aU persons so offending 
had ip90 facto incurred the lawful sentence of the greater 
ezcommunication. His words stating the abuse are as 
follows, viz. ^'Quidam etiam domini temporales et 
eomm ballivi bona decedentium ab intestate in suis dis- 
trictibns ad ipsos dominos pretendentos fore quamvis 
erronee devoluta, ne per ordinarios bona hujusmodi pro 
debitorom solutione sic decedentium ac in alios pios 
usus pro ipsomm animarum salute convertantur utiliter 
prout censensu regni et magnatum r^ni Angliie tan- 
qoam pro jure ecdesiastic&qae libertate ab olim extitit 
ordinatum^ impediunt in derogationem ecdesiasticce li- 
bertatisj jurisque^ et jurisdictionis ecdesiasticie impedi- 
mentum et laesionem enormem.^' i. e. ^' Even some 
temporal lords and their baiMs^ pretending that the 
goods of persons dying intestate in their districts (L e. 
manors or sokes^) have devolved to the lords^ although 
erroneously^ prevent such goods of persons so dying 
from being usefully applied towards the payment of 
their debts and in other pious uses, for their souls' 
health, as was of old ordained by the consent of the 
king, and of the barons and great men of the kingdom 
of England, as for a right and liberty of the Church, to 



58 INTRODUCTION. 

the impairing of such right and liberty of the Churchy 
and to the great hindrance and damage of the jurisdic- 
tion of the same/^ (z) 

But the Ecclesiastical Jurisdiction was soon to be 
fixed on a solid basis superior to all future attacks. 
About sixteen years after the last-mentioned constitu- 
tion was passed at Westminster^ the celebrated 31 Ed- 
ward III. (1357)9 a statute which has been commonly 
though incorrectly rejiuted to be the origin of execu- 
tors dative^ or administrators as they now exist. 
The words of the act (c. 11) are^ ^' Item acorde est et 
assentu qe en cas ou homme devie intestat, les ordi- 
nairs &cent deputer de plus proscheins et plus amis 
du mort intestat pur administrer ses biens les queux 
deputes eient action a demander^ et recoTcrer come 
executoures les dettes dues au dit mort intestat en la 
court le roi pur administrer et despendre pur Falme du 
mort et respoignent auxint en lacourt le roi^ as autres 
as queux le dit mort estoit tenuz^ et obligez, en mesme 
la maniere come executoures respondrent et soient ac- 
countables as ordinairs si avant come executoures sont 
en cas de testament, si bien de temps passe come de temps 
a yenir :^^ i. e. ^ It is accorded and assented that, in case 
where a man dieth intestate^ the ordinaries shall cause to 



(1) Lynd. lib. 3, tit. 28. This ab intestato decedentium (cleri- 

allusion of the archbishop to the corum) solutis debitis eorundem 

Great Charter is understood by bona qus supererunt in j^MucatuAS 

Blackstone to refer to the Char- et perumU decedentium coruangui* 

ter of Henry I. Comment, vol. 3, neitj servUoribus et propinguit «u- 

book 3, c. 7. This recital leaves <Uut pro defunctorum animantm 

little doubt about the application salitte, distnbuant et convertant 

of the words *' pious uses. " And nihil inde sibi retento, nisi for- 

another constitution of the same san aliquid rationabile proip- 

prelate (Lynd. lib. 3, tit. 13. de sorum ordinariorum labore fuerit 

Testamentis ita quorundam,&c. )^ retinendum. 
equally explanatory: — *' Necum 



INTRODUCTION. 59 

be depated certain of the next and most lawful or honest 
fiiends of the intestate deceased to administer hia goods, 
which deputies shall have an action in the King's Courts 
to demand and recover, as executors, the debts due to 
the said intestate deceased, to administer and dispend 
for the soul of the deceased, and shall answer likewise 
in the King's Court to others, to whom the deceased 
was holden and bound, in the same manner as executors 
shall answer. And they shall be accountable to the 
(»rdxiiaries as executors are in case of testament as well 
for the time passed as the time to come." 

The supposition that executors dative were not in 
existence before the passing of this act, or rather that 
the ordinary acted by any other administrator than 
the next of kin, is abundantly disproved by the clause 
in Magna Charta before quoted, where the expressions 
used are to the effect that the intestate's property shall 
be distributed, — '^ per manus propinquorum suorum et 
amicorum suorum, per visum ecclesise." It appears 
by this, that the ordinary was from the beginning di- 
rected to clothe with the character and power of execiUnr 
datkms one of the intestate's nearest relatives; who was 
mider that authority to distribute the effects amongst 
the other members of the family, in such manner and 
proportion as the Church, following the system of the 
civil law, should regulate and direct, (b) 

{h) So in the general letter eos contingentem ordinetur per 

issued in iS50, by the English amicos defiinctorum et fratres 

htihopSy after receipt of Pope In- deputatos ibidem ad prsedican- 

nocent'i brief in favour of the dum ut depiitetur in subsidium 

crusade under Richard Earl of terrae sanctce quantum poterit 

Cornwall, " De bonis vero cruce sine scandalo." Mat Pans, Ad- 

signatomm qui decedunt sine tes- dittamento, p. 1141. 
taroento, quantum ad portionem 



60 INTRODUCTION. 

It is improbable that the ordinary could have acted 
in the administration of an intestate's estate by an offi- 
cial administrator^ or one of his own dependents^ as 
besides the temptations this supposed practice would 
have afforded to the officers of his registry, in a manner 
totally insupportable through so many generations, the 
simple machinery and resources possessed by the chan- 
cellor of a bishop's consistory would have been in 
every respect insufficient to afiect the execution of 
trusts nearly as great and numerous, perhaps, as those 
under which the modem C!ourts of Equity now groan. 

No authority can be adduced in fevour of the posi- 
tion; and the fietcts on which it is made to rest are not 
only improbable, but, from all that is known of the 
general history of the times, entirely unprecedented 
throughout the whole continent of Europe, and, as &r 
as we may judge from the experience of later ages, too 
absurd to have ever happened at alL 

The intention of the act was directed to the follow- 
ing purposes. Previously to its passing, an action in the 
goods of an intestate was capable of being brought only 
in the court of the ordinary himself, as I shall in the 
course of this introduction attempt to shew. Against 
this restriction the act was proposed as a relief, by 
giving to the executor dative a persona standi in the 
King's Court, and the power of there instituting and 
answering all actions respecting the intestate's estate. 
In order, however, that the terms of the enactment, by 
thus rendering him more independent of his consti- 
tuent, might not be construed to extend to the abolition 
of the ordinary's right of calling u{^on his delegate to 
render an account of his administration, a special clause 



INTBODUCTIOM. 61 

was inserted^ as has been seen^ providing that, as well 
for the time past as for the future^ the ordinary's depu- 
ties should be accountable to him in the accustomed 
manner. 

The helping hand of the kw having thus at length 
fixed the power of the ordinary on a firm and soUd 
foundation, it never again became the subject of dis- 
pute; bot firom the epoch of that statute, the ordinary was 
enabled to extend and perfect his system through ages 
of undisturbed tranquillity. The secular authorities no 
longer contended widi the Churdi finr the possession of 
ibia privilege, and the primacies of IsHp and Langham, 
of Sudbury and Arundell, passed quietly over, without 
any one of those prelates finding himself compelled to 
resort to the enactment of a new constitution or canon 
in his defence, or to denounce the censures of the 
Church against a profane stressor (c). 

But the manner in which the new spiritual privilege 
should be divided, after it was finally taken out of lay 
hands, appears to have been long a question between 
die diocesans and their metropolitan. 

The history of Aeir contention, which at times 
assumed rather a warm character, and the establishment 
of the preroffotwe or superior ri^t of jurisdiction of the 
metropditan in these matters of testamentary jurisdic- 
tion, is, I think, almost totally unknown in the history 
of our jurisprudence, none of otur legal antiquarians 
appearing to have been aware of any of the circum- 
stances attending it. The fi^owing ranarks, therefore, 
may not be unacceptable to the read^. 

(c) Vis. firom 1362 to 1415» tions the pramneiaU of Lynde- 
tfae date of Henry Chyeheley'e woode terminates, 
tnnilation. Widi hia conatitu- 



62 INTRODUCTION. 

We have already seen that the power of administer- 
ing the personal estate of an intestate was conferred^ by 
Magna Charta, upon the Church. But that instrument 
did not presume to recommend or select any particular 
ordinary by whom, in preference to all others^ the right 
was to be exdusively enjoyed, no order of the hierarchy 
being alluded to therein. The charter must therefore 
be construed to have vested the right in all the existing 
tribunals authorized by the Church, and to have left to 
the ecclesiastics, in case of any contest of jurisdictions, 
a discretionary power of defining and settling their pe- 
culiar limits and extent. 

In order, therefore, to ascertain to what persons it 
was proposed to confide this important trust, we must 
first see who were the dignitaries exercising, by them- 
selves or their substitutes, the jurisdiction previously 
belonging to the Church. 

To begin with the lowest ordinary in the hierarchy, 
viz., the archdeacon :-»He held pleas of criminal 
matters, and imposed public penance and other punish- 
ment upon lay or clerical offenders (rf). The cogni- 
zance of testamentary suits appears also to have been 
conceded to him. 

The deans and chapters of cathedral churches had a 
similar jurisdiction, including also the exclusive privi- 
lege of determining all matrimonial disputes arising 
within their precincts. 

But the ordinary firom whom the authority of the 
former was entirely borrowed was the bishop. The 
corrective jurisdiction belonged to him by the divine 
right of his apostolic office, and such other authority as 

(d) Ayliffe's Farergen, Jur. Angliie, p. 95. 



INTRODUCTION^ 63 

he ymE possessed of had been the gradually accumu- 
lated gifts of the princes of Europe. 

The archbishop was of course superior to all. Being 
l^ate of the Holy See as well as metropolitan^ be 
enjoyed not only an appellate or querelatory jurisdic* 
tion in all cases previously laid before the diocesan^ 
but might also proceed primd instantid in any matter 
which fell within the cognizance of the Church (e)« As 
metropolitan or legate^ he was concurrent ordinary with 
every bishop in his diocese. This authority was not 
confined to the cleigy, but extended over the whole 
body of the laity^ who were as immediately subject to 
the archbishop as they were to their diocesan or his 
archdeacon. . The extraordinary power of the lq;ation 
amply supplied any deficiencies in the Jus meircpo' 
Uiicum. 

Such, then, being the constitution of the Church, 
each of the before-mentioned ordinaries fell within the 
scope and meaning of the charter, for none could pre- 
tend that a preference was shewn to him under the 
general terms of that instrument. 

But the bishops were not inclined to put so liberal, 
or, in fact, so just a construction upon the words of the 

(«) Reg.Peccfol. 145. **Ctun subditoram suoram ullomodo 
ecdesia C^toariensiB tali gaudeat cognoscere per querelam *' (ibid), 
privilegio in corpore juris redacti, The same Arcnbishop also says 
quod arcbiepiscopus, aui pro tern- (Reg. Pecc, foL 206), " Consis- 
pore fuerit causas Buboitorom suf- toriuin nostrum in ecclesia Beatae 
fraganeorom suoram etiam per Marise de Arcubus Londiniis ex- 
simplieem querelam audire possit istens, quod quadem peculiari af* 
eC aebeat" Hiis was not mere fectione eo magis diligimus quod 
opinion on the part of Archbishop comprovinciales Cantuariensis 
Peccham; he followed it up by ecclesiae potentiis presidentium, 
excommunicatins the Bishop of frequenter oppress! ad illud tan- 
Hereford, who nad resisted the quam ad fbntem justitiae undique 
exercise of this concurrent power conlugiunt ut inde hauriimt con- 
in his diocese, denying the right enium, contra suas molestias me- 
of his metropolitan '< de causis dicamen." 



64 INTRODUCTION. 

charter. They relied apon foreign precedent, and on 
the continent the ciyil and canon laws had both con- 
curred in declaring that probate of wills was the right 
of the episcopal order alone (/)• The English bishops 
therefore contended that this new concession to the 
Church in England was to be regulated by those laws, 
and consequently that it belonged to them alone, or at 
least conjointly with their inferiors, the archdeacons 
and deans; for with the latter they appear never to 
have had any contention at all (y). So far as regarded 
the metropolitan, they asserted an uncompromising 
monopoly (A). 

But during the period immediately following the 
origin of this privilege the metropolitan would appear 



(f) Since 1 1 25 ihe Arcbbisliop comprobatur." See also the gloss 

of Caiite]i)ury for the time being on tnat portion of the text 

had been legatus natta of the (g) Decret. Greg. 9, 3, c. 26, 

Roman See. This diffnity was pp. 17 and 19, and Cod. Justi- 

conferred in that year, by Hono- nian, L, nulli si quis ad decl. c. 

rins the Second, upon William de episc. et cler. 

Archbishop of Canterbury and (A) Thearchdeacon proved wills 

his successors for ever. (Cotton in the time of Edward I. In the 

MSS. Galba, £. 1.) The only Cotton MSS., Faustina, B. 2, 

reservation in a papal grant of n. 151 (the chartulary of Saint 

this kind was of the fi^culty of Mary's Convent at Clerkenwell), 

deposing bishops. The power is preserved the will of Henry de 

was otherwise as general as tnat of Enfend, containing a devise to 

the pope himself. Alexander the that religious body. At the end 

Third, in a letter to all the suffirar is the act of probate : — ** Pro- 

gans of Canterbury, writes (De* batum est hoc testamentum Lon- 

cret. Greg. 9, 1, c. 30, s. 1, de dini aula archidiaconi Middelsex, 

OflScio Legati), " Sane licet idem dio commemoracionis animarum, 

archiepiscopus (i. e., Cantuarien- anno domini MCC, nonoeesime 

sis^ metropolUico jure audire non coram nobis officiali Middekex, 

debeat causas de episcopalibus jurato infra scripto Johanne exe- 

vestris nisi per adpellationem de- cutore de fideliter administrando 

ferantur adeum, tsgationii tamen et de fideli inventario faciendo, et 

obteniu universas ^uae per adpd- fideli compute reddendo, cum su- 

lationem vel querimoniam perve- per hoc fuerit reouisitus et jurata 

nerunt ad suam audientiam audire Alicia executrix, &c. This will 

potest et debet, sicut qui in pro- was also proved in the Hustings 

vinda sua vices nostras gerere Court. 



INTRODUCTION. 65 

to have been in no degree solicitous to advance his title 
to a participation in it. Of his own option he seema 
never to have attempted to claim, in this respect, a 
concurrent or co-ordinate jurisdiction with the suffra- 
gans of his province. 

After some time, however, it became apparent that 
there were cases in which the system of probate from 
each diocesan was productive of many and serious 
inconveniences. For example, whenever a person left 
effects within any diocese besides that in which he died, 
his executors or his next of kin (for the case would be 
the same) were compelled to extract the necessary pro- 
bate or letters of administration in each separate juris- 
diction. The estate of the deceased was consequently 
exposed to enormous detriment, and instances would 
occur where the property, being inconsiderable, might 
be wholly exhausted in the mere preparatory expenses 
of probate, and the creditors and legatees, by those 
means, be defrauded of their just and equitable 
daims (»)• 

The system of probate by the episcopal ordinary 
unavoidably involved this inconvenience. It became, 
therefore, an urgent and imperative necessity that some 



(i) The origin and objects of the defunct! substantiam in circmitu 

werogatioe are clearly explained hujumnodi expendant in parte 

ui the MS. r^;ister of Robert of plurima vel consumant, testa- 

Wincheliey: — " Memorandum mentorum execucio retardetur, 

ouod cofl;nicio et examinacio ut ul- defundi revelacio differatur, quss 

tima ▼ouintas defuncti debite de* foret per actus suae voluntati ul- 

mandetur (q., executioni ofiii^ff </), tima consonos promoTenda, et 

ne executores defuncti qui bene- propter alias causas racionabiles, 

ficia vel bona temporalia vel spi- ad Dominum Cantuariensem, 

ritoalia in diversis et pluribus archiepiscopum qui pro tempore 

diceceaibiis, dum vixit obtinebat foret, notorie pertinere noscun- 

somptibus in singulis episcopali- tur." 
bos per plures circuitus &tigati, 



66 INTRODUCTION. 

remedy should be qyptied, as this oppressiv e state of 
things was entirely incompatible with the interests of a 
oommereial and wealthy people, as England had eren 
then commenced to be. The public coold not long 
bear with patience that so large a proportion of a de- 
ceased's estate should be oonsomed in nothing more 
than the expenses of obtaining the ordinary's seaL 

Urgent complaints from legatees and creditors dis- 
tressed by the insufficiency of an estate, winch had 
suffered in this manner, to disdiaige their respectiTe 
demands, were made to the archbishop firom all quar* 
ters. They urged him in other cases of the same kind 
to interpose his metropolitical authority, and assume 
himself the administration of the deceased's estate. 

His right, even as metropolitan, to interfere in the 
peculiar jurisdiction of the suffiragan, was admitted by 
the canon law, on certain occasions, without regard to 
the prior claim of the other, and this could be fairly 
shown to be one of those cases (it). The negligence, or 
rather inability, of the diocesan to afford his subject 

(k) Dr. Aylifie (Par. Jur. n>eetioB| would seem to establish 

A'oaie), following the authority toe pretensions of the metropo- 

of the Decretals of Pope Gregory litan. N^|ligence and incapacity 

the Ninth (lib. 1, tit. 31, cap. 11, lead to similar results, and where 

et eloas. ib.), says — " Though an property existed in several dio- 

archbishop has this jurisdiction ceses, neither diocesan was able 

(i. e., excommunication and in- to afford complete justice. The 

terdict) over his own suffragans, necessity of an executor resorting 

yet he has not jurisdiction over to each several ordinary for an 

the persons and estates of men accumulative or successive autho* 

dwelling and existing in the dio- rity was itself a gross injustice; 

cese of ms suffragan bishop, unless and tlds inability of afformng fuU 

it be in some particular cases, viz., relief was as palpable an evil as 

when the suttragan is negligent, a direct and positive denial of 

as aforesaid, after three admoni- justice ; and both of them were 

tions." What should constitute an acbiowledeed foundation of 

negligence was, of course, in the the appellate jurisdiction of the 

breast of the archbishop. There- metropolitan, 
fon this passage, on closer in- 



INTRODUCTION. 67 

laity their full measure of justice was a sufficient ground 
and justification in law for a direct interference of the 
archbishop. 

He had for some time forborne the exertion of his 
right as metropolitan^ out of consideration for the pri- 
vileges of his suffragans, or perhaps a fear to encroach 
upon what they had hitherto, though erroneously, re- 
garded as their peculiar prerogative. 

The exact epodi when the archbishop first interfered 
in this manner is not very dear, but we may still ap- 
proximate to it tolerably wdl. 

It is probable that ttie prerogative had been asserted, 
and the archbishop had lent a helping hand to the suitors 
in his prorince before the middle of the reign of Henry 
the Third ; and >firom what we know of the energy of 
BoniiBce, we might be justified in giving him credit for 
so happy a provision. It is certain, however, that the 
archbishop found no friends to the exertion of tiiis 
right amongst the bishops, who firmly refused to recog- 
nize it as a legitimate exercise of the/M metropoliiicum. 

This pretension of the archbishop, therefore, became 
the signal for a violent contention between him and his 
sttffiragans, which continued for the course of nearly a 
century. 

The argument put forward by the bishops on this oc- 
casion, that the granting of probates, or letters of 
administration, belonged to them as the ordinarii hciy 
was admitted on the part of the archbishop, but he 
denied the conclusion which they had drawn from thence 
in their own fiivour, on the ground that he also was 
local ordinary throughout the whole of his province, 
having as metropolitan a co-extensive autiiority with 
each diocesan. He also declared that his reason for 

f2 



68 INTRODUCTION. 

this exertion of his prerogative was no ambition of his 
own^ but a just and deliberate acquiescence in the 
prayers of his provincial subjects^ whose interests de- 
manded that a paramount and central jurisdiction 
should be established for their rehef (e). 

There appeare less reason in this opposition of the 
diocesans to the metropolitan, as a corresponding and 
strictiy analogous scheme of jurisdiction was maintained 
by Jm in relation to thi own subordinates-the 
archdeacons and deans. They claimed to interpose 
their authority in those cases only where the deceased, 
at the time of his death, had personal effects in different 
archdeaconries or other jurisdictions within their respec- 
tivedioceses. Otherwise, they admitted the jurisdiction 
of the inferior judge to be well founded. 

In spite of the remonstrance of his diocesans, the 
archbishop pursued the course which he had com- 
menced. But in 1268, whilst the contest was still rife, 
the papal legate, Ottoboni, arrived in this country, with 
full powers for reforming the condition and discipline 
of the English church. He directed his attention to 
this matter, and with the view of removing for the 

(e) Matth. Parker, Cant. Archp. tions within the diocese of London, 

"de Antiquitate Britannicae £c- by reason whereof the proving, ap- 

desie," (Lond. 1729, p. 43,) and proving, and registering the will, 

his authorities, the MS. Registers and the granting administration 

of Morton, f. 206, and Peccham, of all and singular the eoods, 

ff. 144-150. This is still the chattels, and credits, and also 

style of the Diocesan Court of the auditing, allowing, and finally 

I^ndon, though disused in the discharging the account thereof, 

other consistories. To found the are well known to appertain only 

jurisdiction of the former, its in- and wholly to us(i. e, the bishop), 

struments allege that the deceased and not any inferior judge whom- 

person whose estate is under ad- soever, by right, privilege^ and 

ministration had, "whilst living, prerogative of our Cathedral 

and at the time of his death, Churdi of St Paul, London, by 

goods, chattels, and credits in laudable custom and lawful pre- 

divers archdeaconries or jurisdic- scription for time immemorial." 



INTRODUCTION. 



69 



future all occasion for dispute on the subject at least of 
the estates of beneficed clergymen^ he enacted that, 
where a testator during his lifetime had possessed bene- 
fices in divers dioceses, his will should be approved by 
the iHshop in whose diocese he died. 

It is dear that this constitution of the legate, what- 
ever weight it might have, as bearing upon the subject 
matter of dispute, could not be considered as finally 
determining the general question at issue between the 
metropolitan and his suffiragans. And the ecclesiastical 
lawyers of those limes did not attempt to wrest or ex- 
tend its meaning into any constructiye application to 
the case of the laity (/). In fact, from the silence ob- 
served by the legate upon what was to be the law in 
respect of the estates of laymen dying under similar 
circumstances, a fair inference could even be drawn 
that the point was at length settled in fitvour of the 
metropoUtan. For in this instance public utiHty ap- 
pears to have weighed so strongly on the mind of the 
l^ate as to have deterred him from reviving the strict 
formalities of the canon law, notwithstanding he had 
been commissioned from the Court of Rome for its 
more effectual enforcement in this country. He there- 
fore carefully refrained from making any reference or 
allusian to this point of ecclesiastical law. But at the 



(^f) ConttitutioDes Legathiae 
R^onis Anglicans, D. Otho- 
bont, tit 15. " Super approba- 
tione siquidem testaxnenti ejus 
aui in diverds dioecesibus bene- 
ncia dum vizeiit, obtinebat appro- 
bationem illius epiacopi, in cujus 
dioecesi testator decessit (Jidem) 
▼olomuB adbiberi/' The word 
**fikm" is omitted in the Rubric. 
« Vnlt enim approbationein epis- 



copi in cujus dioecesi testator 
QUI in divisis dicecesibus bene- 
ncia obtinuit decessit adbiberi." 
Vide the glosses of John of Athon 
on t)iis constitution, and of 
Lyndewode on a constitution of 
John Stratford. The latter says, 
'* Sed iUa constitutio loquitur tan- 
turn in clericis benefidatis ut ibi 
notaturper Johannem de Athoull, 
tit. 13. 



70 INTRODUCTION. 

lowest estimate of its weight and importance in counte- 
nancing the archbishop's demand, this constitution left 
the question as open as it found it The metropolitan 
was not barred by the sentence of a superior firom per- 
severing in the conduct which he had adopted, through 
a conviction of its legal competency and justice. 

Af)»r this constitution, opposition ceased for some 
time on the part of the bishops, and we have instances 
on record of the metropolitical prerogative having been 
exercised by John Peccham {g). 

The utmost limit of ecclesiastical prescription, which 
amounted to forty years only, was now long since 
elapsed, when John, the bishop of the extensive diocese 
of Lincoln, who could not rest quiet under what he 
considered to be a severe defalcation of the rights of 
his church, resuscitated the old dispute. On the 
27tih March, 1309, he invoked the aid of the head of 
the church, by an appeal to Rome. The Bishop of 
Lincoln appears to have waited till the restoration 
of Robert, the archbishop, to his functions, before he 
determined on commencing active proceedings in de- 
fence of his asserted right. 

About four years previously, the archbishop had 
been suspended firom the exercise of his ofBoe, in con- 
sequence of the personal animosity of the king. His 
consequent want of favour at both the English and 
Papal Courts appears to have instigated the diocesan 
in the course which he took. He could not, however, 
perhaps have commenced proceedings at an earlier date, 

(g) Boniface died in 1274; his by Robert of Winchekey. De- 

successor, Robert Kilwarby, in cret Greg. 9, lib. 2, tit. 26. 

1272; and Jobn Peccham in "Quadragenalis pnescriptio om- 

1278. The latter was succeeded nem actionem prorsus tollit." 



INTRODUCTION. 71 

as it WHS incompetent to prosecute a matter so inti- 
matdy concerning the dignity of the primacy against 
the mere adnUmsiraior spirituaUum ei temporoKumj 
who had been appointed in the usual manner during 
Uie suspension of the archbishop {h). 

Tie parties being at issue^ stated their case as follows : 
first, the Bishop of Lincoln contended that the proof 
and r^jistration of the wiUs^ the commission of admi- 
nistration of the goods, the taking the accounts of the 
executors named in the wills of those persons who, 
whilst liTing, possessed considerable (plura) spiritual 
or temporal estate in the city and diocese of Lincoln, 
besides property in other dioceses in the province of 
Canterbury, or in other pkces immediately subject to 
the church of Canterbury, wherever they may have 
died, and the cognizance of such suits as might arise 
between creditors and legatees, or other complainants, 
and the executors of wills, under the above circum- 
stances, so fiur as regarded the effects actually existent 
in his own episcopal dty and diocese, appertsdned 
to him and his church of Lincoln, both by law and 
by custom approved, and hitherto observed and main- 
tained. 

The archbishop's case lay in small space. He denied 
the allegations of his suffiragan, throwing on him the 
burthen of proving them. This he was by law en- 
titled to do, having now the possesaio statHs and pre- 
scription on his side, and standing as he did in the 
character of defendant in this suit, he could only be 
evicted from his prerogative by the most stringent and 
evident proofs of its illegality and injustice. 

(k) Adam Murymuth. He was suspended in 1305, and restored 
in 1308. 



72 INTRODUCTION. 

In consequence of the delays of the Roman con- 
sistory, the cause was not determined in the lifetime of 
Archbishop Robert, and it continued in the same state 
for some time after his decease. But in 1319 the ap- 
pellant, the same Bishop of Lincoln, renounced his right 
of prosecuting the ancient appeal, a compromise having 
been effected between him and Walter Reynolds, the 
successor of Winchelsea to the see of Canterbury. The 
terms of the agreement were as follows, viz. The 
Bishop of Lincoln and his successors within that see 
should retain their privileges before enumerated, with a 
reservation to the Archbishop and his successors of the 
metropolitical right of calling for and inspecting the ac- 
counts rendered to the bishop of the estates of persons 
dying under the circumstances before referred to, in 
order that the former might the more easily and cor- 
rectly audit and discharge all other accounts due to 
himself of the remaining part of the same estates. At 
the same time, for fear that the latter concession might 
be construed into an entire dereliction of the indepen- 
dence of the diocesan, by seeming to countenance the 
claim of superiority advanced by the metropolitan, it 
was expressly provided that the latter should raise no 
exception or question in regard to such accounts, but 
that he should pass his approval upon them as a matter 
of course.(A) 

(A) The original is recorded in Episcopum ex altera, occasione 

the Archiepiscopal Register, Win- probacionum sive insinuacionum 

chelsey, fol. 7, andisinthefoUow- et commissionuin administracio- 

ing words — *' Noverint universi nis bonorum; necum reddicio- 

prssentes literas inspecturi quod num racionum ezecutoram tes- 

cum inter pise memorise dominum tamentonim eonim qui dum yix • 

Robertum Cantuariensem Archi- erunt plura bona spiritualia sive 

epiacopum tocius Anglise Prima- temporalia in ctvitate et diocesi 

tern e^ parte una, et dominum Jo- Lincolnue nee non et in aliis dio- 

hannem Dei gratia Lincoluiensem cesibus et diocesi provinci» Can- 



INTRODOCTIOM. 73 

This compromise was embodied in an indenture of 
two parts, and the archbishop as one of the parties set 

tuarienau autinlocis aliis ecclens illis quae ibidem decedentea in 

Cantnariensi immediate subjeetit dvitate vel diooesi Lincolnienai 

hacteoofl babuerunt ubicunque tempore mortis sue habuerint, 

obierint: Quas probacionea, insi- etnec non ezpediciones earum et 

nuadones et commimoiies rado- cognidonea causarum i»»dic- 

num reddidones, cognidonesque tarum, quae occasione bonorum 

cauaanim qus per creditorei vel bujusmodi inter partes quascun- 

l^atarioB vel quoscunque alios ^ue quatenus ^ forum ecdesias- 

qaerelantes, contra executorestes- beam pertinet in Lincolniensi 

tamentorum bujusmodi pro bonia diocen susdtari continrit : reser- 

praecipae hujosmodi decedentium vato dicto domino Arcniepiacopo 

m soa dvitate vel dioceai ezia- et auis succesaoribua post reddid- 

tentibas, ad ae et eededam auam onea calculadonea aeu expedid- 

Lincolniensem pertinere debere ones alii radocinii administra- 

conatanter assent, tarn de jure donis executorum bujusmodi 

qoani de bactenua approbata, teatamentomm aumma et ulti- 

pacifice observata et obtenta ma inspectione bujusmodi, et 

consuetudine ac praaervata; ab admmiatracione executorum 

prsfalo domino Arcbiepiacopo abeolutione final! raciocinio- 

contrarium aaserente, orta fuis- rum, calculaciorum, et expedici- 

■et materia quseationia bujua- onum, neaa ut metropolitanua ea 

modi occaaione, inter Dominum occaaione quod decedentea pre- 

Epiaoopum Lincolnienaem partem diet! obtinuerunt in diveraia dioce- 

appellantem, et prcfatum Arcbie- aibua auae provindce plura bona in- 

piscopom partem appellatam, et in anicere voluerit. Item tamen quod 

Romana curia liapenderetac pen- iaem dominua Arcbiepiacopua et 

deatinprsMenti: aemumhujuamo- aucceaaorea aui archiepiacopi auas 

di litia et questionia materia inter reddicionea, calculadonea, etexpe- 

Reverendum Patrem Dominum dicionea, per praedictum episco- 

Walterum Dei gratia Cantuarien- pum factas absque aliqua calum- 

aem Arcbiepiacopum tociua An- nia et sine dimcultate approbet« 

gliae primatem, qui nunc eat, et Renundarunt in auper partea 

dictum dominum Jobannem Epia- pr»dictoe appellacionibua hac 

copnm Lincolnienaem in forma occaaione prsdicta interpontia 

quae aequitur perpetue valitura omnibuaque proaecutionibua ea^ 

amabiliter conquievit, viz., quod rum ac juris processibus penden- 

dictua Epiacopua Lincolnienaia et tibua aibi competentibus bine et 

aucceaaorea aui epiacopi, jure ordi- inde. Inquorum teatimonium 

nario perpetuis temporibus in fu- sigilla dictorum patrum prae- 

toro habeat probadonea indnua. aentibua literia per viam inden- 

cionea. commisnonea, adminia- turs confectia bine et inde aunt 

tradonea bonorum, audicionea appenaa. Actum et datum quoad 

reddidonnm radonum execute- noa Walterum Arcbiepiacopum 

mm teatamentomm decedentium, prsdictum VII. Id. Januarii, 

quoramcunque parocbianoram anno domini Willeaimo CCC. 

qui plura bona in diveraia diver- nonodecimo in prioratu Hunting* 

aibuaCantuarienaiaprovinciaedum don." 
vixerint ut babuerint pro bonia 



74 INTRODUCTION. 

his seal to it on the 7th January, 1319, at die Priory of 
Huntiiigdon. 

This agreement with the Bishop of Lincoln was, as 
we shall see hereafter, in all probability obseived only 
by the Archbishop who was party to it, and his imme- 
diate successors, Stratford and Mepham. To the others 
it appeared in the Ught of a rash and unnecessary con- 
cession of an important branch of the ju8 fnetrcpoUii- 
cum, which consequently could haye no power of 
binding them to its observance. 

It only regarded the diocese of Lincohi* And with 
the other diocesans the Archbishop does not appear to 
have entered into terms of compromise or agreement in 
this respect, for no ostensible opposition would seem to 
have been offered on their part. 

With regard to the other dioceses of die province 
of Canterbury, the Archbishop now commenced a 
more extensive exercise of his privilege, and the 
applications to him or his vicar-general for the favour 
of the archiepiscopal seal became every day more nu- 
merous. 

During the primacy of John Stratford, who followed 
Simon Mepham (the successor of Walter), we find 
many instances of the right of the metropolitan being 
energetically enforced. He assumed the offensive, and 
with a high hand challenged, and repealed as illegal and 
imperfect, all former grants of probate or administration 
made under circumstances which clashed with his su- 
perior pretensions. 

Among these cases occurs the following : — Sir Peter 
de Columbers and his brother Stephen, a deigy- 
man, inadvertendy proved the wiU of their mother. 
Dame Alice, before the Bishop of Rochester. It was 



INTRODUCTION. JS 

aftenrards diaoovered, by the ezecutora, that the tes- 
tatrix had left effects also in the diocese of Canter- 
bmy, and in other dioceses of that prorinoe. They 
were acoordiogly compelled to re-piove the will before 
the Archbishops who administered the oath in person 
on the 18th day of June, 1334, at the chapel of his 
manor of Otfordj in Kent. The probate states^ that 
the ^' approbation and r^istration of wiUs^ xmder the 
drcnmstances before mentionedy is well known spe* 
ciaUy to belong to the arcUnshop^ by the preragaiwe 
of his chnrch of Canterbury {i)J^ 

(i) The pTo1>ate is trans* testari potuit et testabatur, dum 

cribed in tiie register. ** XY . SLaL vixit obtinebat ; cujus testamenti 

Join, anno Domini millesimo insinuacioy registracio, et appro- 

CCC XXXIIII. Coram nobis bacio ad nos de prerogativa eccle- 

JobanBe, pemuMione divina Can- siae nostrss Caotuariensis ex causa 

tnaiienri Archiepiscopo^ toeius prsmissa spedaliter dinoscitor 

AngUae primati, et apostolicse pertinere; insinuatoque approba- 

sedis lisato, in capdla manerii tooue testamento pnedicto coram 

nostri de Otford, aomino Petro nobis ejusdem die loco et anno 

de Cohimbersy mifite, et Stepbano snpradictis, et per nos legitime 

de Columbeniy dezioo, filiis et pronunciato pro eodem commiai- 

ezecutoribus testamenti Domins mus in forma juris administra- 

Alicis de Columben defunctae in cionem bonorum dicte defunctae 

dicto testamento sive scbedula uMcun^ue in nosttis diocese et 

annezo nominalis personaliter provincia Cantuariensi existen- 

oonatitntis. Idem Petrus et Ste- tium ezecutoribus supradietis. 

phanns insinnadoni et probacioni Edmundo de Polle executore in 

testamenti diets dominte Alicias, dicto testamento nominato tunc 

et commisaioni adnrinistracionis presente, et onus administracionis 

bonorum ad testamentum eiusdem recusante subire ; reservantes no- 

spectantinm et in diocesi nofPensi bis Dotestatem, domino Roberto 

existentium coram episcopo Rof- de Snipton, executori in dicto tes- 

fensi de facto, renunciarunt tamento nominato administracio- 

expresse. Nosque bujusmodi nem bujusmodi committendi cum 

inainuacionem, probacionem, et cam a nobis informa juris venerit 

commissionem administracionis et peterit In cujus rei testimo- 

judicialiter reprobantes tanquam nium buic scedulae nostrum fe- 

factas coram eo qui nullam ad cimus apponi fdgillum. Datum 

bsec potestatem babebat, pro eo apud Otford, die et anno supra 

quod dicta Domina Alicia bona dictis et nostrae transladonis 

in nostra et aliis diocesibus nostrse prime." 
Cantuariensis provinciae de quibua 



76 INTRODUCTION. 

In the same year^ during the absence of the Arch- 
bishop on the Continent^ we find the wiU of a London 
citizen re-proved before the Vicar-General, Adam of 
Muiymuth, the well-known historian of the times (k). 
This will was, in the first instance, erroneously proved 
before the archdeacon of Surrey, who is described as 
consenting to the cancellation of his own probate, on 
the ground of its having been granted '^ contrary to the 
approved custom of the church of Canterbury.'^ 

Presuming on this compromise between the metro- 
politan and the Bishop of Lincoln, the ecclesiastical 
lawyers of the age proposed to e£fect a modification of 
the general evil, by introducing into England the regu- 
lations of the canon law on this subject. By the De- 
cretals of Gregory the Ninth, the probate of a will 
granted by the local ordinary in whose jurisdiction the 
testator died was a proof sufficiently effectual for all 
other dioceses where he possessed property, and those 
other ordinaries were competent only to commit admi- 
nistration, and audit and pass the accounts, of the 
effects situate within their respective jurisdictions (/)• 

Sk) 14 Kal. Jan. 1334, the the Holy Land, at that time pro* 

L of Paganus Bunariua was jectedbv the Kings of France and 

approved by the Vicar-General, England. Vide Adam Mury- 

" »cta primitus reprobacione in- muth. In the same register occurs 

rinuacionis testament! proedicti the probate of the will of John 

Ser magistnim Will. Juge, archi- Everaon, Dean of Saint Paul's, 

iaconum de Surrey, contra con- London, in which are found the 

BuetudinemecclesiaeCantuariensis following expressions: — "Facta 

approbatam de expresso consensu primitus reprobacione insinua- 

archidiaconi." Ilie archbishop, cionis dicti testament! per quos- 

who is stated in the probate to cunque iuferiores ordinarios prius 

be " in remotis agens,* had gone factse." 

on a royal mission to Rome and (/) Decret Greg. 9, lib. z, tit 3» 

Paris, for the purpose of arrange c. 26, pp. 17 and 19. 
ing the plan of an expedition to 



INTRODUCTION. 77 

But this principle of law was never acknowledged in 
England, except in the special case before mentioned of 
the Bishop of Lincoln. It was a half measure that, if 
carried into practice generally, would have afforded no 
satisfaction, either to the nation or to the ccmtending 
parties. This prcject, however, existed only in the 
suggestive minds of tiie commentators. John of Athon, 
who has a proposition to this effect, has the appearance 
of merely theorising, and at the same time restricts his 
remarks to the case of beneficed clerks (m). Lynde- 
wode alludes to it as an obsolete point of law, long 
overridden and determined by a contrary prescriptive 



The exemption firom the general law, which the 
Bishop of Idncoln extorted from Archbishop Walter, 
was^ as we observed before, of short duration ; its im- 
policy, if not injustice, was apparent to everybody. 
Accordingly, in 1354, Simon Isiip, the archbishop, re- 
called the privilege which his predecessor had granted, 
and reduced the see of Lincoln to its former state of 
subjection (n). Whenever, therefore, the latter intruded 
himself into the peculiar province of the metropolitan, 
he rendered himself liable to a similar control with the 
rest of lus episcopal brethren. An instance of the kind 
occurred in 1S62 (o). Henry, Duke of Lancaster, died 

(m) John of Athon, in luB note says — ^'Hodie antem in Anglia 

to Otnobon's Conttitntion, sayi — ArchiepiscopuB Cantuarienns in 

** Quoad probationem testamenti sua proyincia tarn quoad proba- 

t^is defimcti, non dicit quoad tiones et insinuationeB hujusmodi 

rectpiendnm computum et ratio- testamentorum quam etiam quoad 

nem adminiatrationis bonorum commissionem administrattonia 

talis defiincti, immo hoc puto uni bonorum et auditionem compoti 

^oeesano et aHeri prout sigiUa- omnia expedit," &c. (Ph)rinc., 

tim uni yd alter! bona hujusmodi tit. 13. 
subrant" * Lyndewode, after re- (n) MS. reg. Islepe. 
fening to Uie question of law, (o) MS. reg. ditto, folio 173. 



78 INTRODUCTION* 

at Leicester^ and was buried in the collegiate church of 
Our Lady^ in that town. The Bishop of Lincoln^ pre- 
suming on the circumstance of that nobleman having 
died in his diocese, proceeded to approve the will, and 
in the month of April in the same year administered to 
the executors, at the castle of Leicester, the usual oath 
of execution ; but, in the following month, the probate 
which the diocesan had granted was revoked by William 
of Witleseye, the official of the Arches' Court, and the 
original will was proved again before him (p). 

The opposition of the diooesans was now powerless^ 
if not extinct. 

The above &ct also shows that the exercise of tiits 
privil^e of the metropolitan was then conducted on an 
exclusive and systematic plan, admitting of no in£rin^;e» 
ment or usurpation on the part of the bishc^s. 

It was probably during this period tiiat the arch-^ 
bishop sought and obtained the sanction of the Court 
of Rome to his enjoyment of the prerogative. He had 
not applied for it before, for, as long as he only exerted 
this right in a few and isolated instances, it could not 
attract the attention of that court ; but when it ap- 



(p) Proof of ihifl kind is also a Pecke de Stokeneyland defimcti* 

commiaion directed to a cleigy- diete Norwyoensia diocesis ad 

man (probably some rural dean), comparendum coram se occasione 

by William of Wytlesye, in quorundam bononim mandavit. 

1398 — 9. (MS. teg.) *' Will., Tibi committimiu quod de prs^ 

&c., dilecto filio domino Roberto missis te informes, &c. Datum 

Alder, reetori ecdesiee parochiales apud Heggeston vii idus Martii, 

de Pundfeld, Londinensis diocesis 1398. In the register Blamyre^ 

salutem. Dominua Johannes, preserved in Doctors' Commons, 

rector eccIesisB de Twayl, Nor- the bull of confirmation granted 

wicensis diocesis, officialis domini to Henry Dene in 1483 is re- 

Archidiaconi de Sudbuiy se prsB- corded — (confirmacio preroga- 

tendens, ad quem nulla jurisdictio tiTe Cantuariensis ecclesise 

Eertmet quandam Christianam re- approbandorum testamentorum). 
ctam et execatricem Johonnis 



INTRODUCTION. 79 

peaied conspicuotts as an inherent and intq;ral privilege 
of the metropolitical see, and as one which was also, in 
a political view^ of the utmost consequence to the power 
and importance of the Church, it became an oliject of 
regard, and ifas confirmed by the Pope with the other 
branches of the jua metropoUticmn. The omission of 
this amongst the usual and unquestioned appendages of 
the archiepiscopal title might tend to inyalidate the 
jurisdiction, espedally as it had always been asserted to 
be a spiritual and purely ecclesiastical right, which had 
existed in the possession of the Churdi for an unlinuted 
period of prescription. 

It will have been observed that at first the arch- 
bishop advanced his daim on all occasians where a 
deceased person left penonal effects in several dioceses 
irithin his province, without paying any regard to its 
comparatiye value or amount. But this afterwards un- 
dorwent a oonfloderable modification ; for the metropo- 
litan, overeome by the remonstrances of his suffragans, 
at length consented to relax his strict right, and to con- 
tent himself witli a partial enforcement of it, viz., in 
tiliose cases only where the deceased might be consi* 
detei to have left bona notabilia, or conaidenible pro- 
perty, in each separate diocese or peculiar jurisdiction 
of his province (;)• Here a firesh subject for contention 
arose : an uniform standard of noiabiliiy, applicable to 
the general property of every diocese, could not be 
easily or quietly established, for the estimate of 
property might vary in every coimty or borough, 
according to the degree of wealth and luxury of their 
inhabitants. 

(g) Swinburne on Testaments, part 6, s. 9. 



80 INTRODUCTION. 

Accordingly^ we find that different arrangements were 
made with the metropolitan in various dioceses^ which 
may perhaps still remain in force at the present day. 
In the diocese of London a composition was at some 
time effected between the metropolitan and the bishop, 
by which a less sum than ten pounds was to be consi- 
dered as not fialling within the rule which constitutes 
bona notabUia. But the general rule in this respect was, 
and still is, that a deceased^s property must amount to 
the sum of one hundred shillings, or five pounds, in 
order to found the jurisdiction of the archbishop ; and 
this is also the criterion by which the ecclesiastical 
courts test the means of a suitor who applies for justice 
in/ormd pauperia. 

Another question remains, for the authorities do not 
agree as to whether it was only necessary that the gross 
value of the effects in the dioceses should amount to 
five pounds, or that there should be that distinct sum 
in one of such dioceses at least (r) ; but the former 
opinion, in all probability, is the most correct one, for 
otherwise the scantiest estates would have been ex- 
posed to the greatest expenses, and to those very 
evils for the prevention of which the metropolitical 
authority was so* beneficially interposed in all other 
cases. 

(r) Coke says, ''AH testaments pounds in the whoU, the same 
are proved, and administration shall be bona notabitia^ and con- 
granted, in the Prerogative Court sequentlv under the archbishop's 
of the several archbishops respeo- jurisdiction." ( Abridg., 908, 909.) 
tivelv, where the party dying But the modem law (Canons, 
within the province of such arch- 1603) makes bona notahiiia to de- 
bishop hath bona notabUia in some pend upon the deceased having 
other diocese than where he died." goods or debts in any other dio- 
(4 Inst. 3S5.) Rolle says, " If cese than that in which he died, 
he who dieth hath goods in both to the value of five poimds. 
dioceses, to the amount of five 



INTRODUCTION. 81 

Nor could the next of kin or executors of a deceased 
hope to escape the vigilance of the officers of the regis- 
tries^ by a silent occupation of the deceased's effects^ 
unauthorized by the seal of the ordinary^ as it was then 
the practice of the ecclesiastical courts to issue an ex 
officio citation or warning, and serve it on all executors 
and next of kin generally, with a denouncement of ex- 
communication in case of their non-compliance with 
the law («). 

During the whole of the period of which we have 
been treating, wills were proved before the archbishop 
himself or his vicar-general, and the oath was on all 
occasions actually administered by them. But as the 
property subject to the administration of the metropo- 
litan increased, through the advancing commerce and 
prosperity of the coimtry, the business of the preroga- 
tive^ increasing in a corresponding ratio, became too 
onerous for one single judge, viz., the official and 
vicar-general (for the offices were usually united), who 
cxmld only devote to this extraordinary function his 
leisure firom purely ecclesiastical transactions and ques- 
tions. 

These considerations at lengtii occasioned the forma- 
tion of a new court. In 1443 Archbishop Stafford 
removed for ever from the Court of Arches, of which 
his official principal was judge, its original jurisdiction 
over wills and intestacies, transferring the dischaige of 
the office of the prerogative to an entirely new func- 

(i) A specimen of this kind of ministratores, occupatores, sive 

wamii^ appears in Reg. Stafford, detentores/' to appear on the 

£ 8. It is directed to the appa- fifteenth day after service, before 

riter-general, Christopher Fur- the archbishop, and the " auditor 

neys, who is commanded to cite audientis causarum et negotio> 

aD execntors and " bononim ad- rum," &c. 



82 INTRODUCTION. 

tionary^ who should preside in a distinct and separate 
court, dignified with the appellation and style of Com- 
missary of the Prerogative Court of Canterbury {t). 
The first upon whom the Archbishop conferred this 
appointment was Alexander Prowet, Bachelor of the 
Decrees (or Canon Law). This commission, which has 
never been printed, contains matter too curious to pass 
over without quoting ; I may therefore be excused for 
giving it at full lengtih (u). '^ Johannes, &c«, dilecto in 
Christo filio magistro Alexandro Prowet, in decretis 
baccalaureo, salutem, graciam et benedictionem. Cum ap- 
probado et insinuacio omnium et singulorum testamen- 
torum quorumcunque testatorum defunctorum nostras 
Cantuariensis provincia habentium tempore mortis suae 
bona de quibus testari potuerint, in diversis diocesibus 
nostrse Cantuariensis provincifB, commissio administra- 
cionis bonorum hujusmodi testamenta conoementium, 
computi, calculi, sive raciodnii administracionis prao- 
dictae audicio, absolucio et finalis liberacio ab eodem, 
nee non dispositio sive administracionis commissio bo- 
norum quorumcunque ab intestato decedentium obti- 
nentium bona hujusmodi ut prsefertur ad nos solum, et 
in solidum et non ad alium judicem ioferiorem quotiens 
nobis placuerit de prerogativa ecdesias nostra Cantuar 



(f) There u no doubt that this then in existence were the official 
was ihe first apnointment of a principal and the dean of the 
commissaiy of tne prerogative, arches (Cotton MSS. Galba IV.) ; 
and there is no trace of such an and at a subsequent period (1368) 
officer before that year. When William of Wytleseye recorded, 
Robert of Winchelsey convoked in his register, the commissions 
a dignified assembly in the Church of the official and dean only, 
of Saint Mary-le-Bow, London, amongst the judicial appoint- 
in order to ensure the most solemn ments made by him on the occa- 
sanction to the new statutes of sion of his translation to Canter- 
his Court of Arches, the only bury, 
judges of the metropolitan courts (ti) MS. Reg. Stafford, fo. 8. 



IIITRODUGTION. 83 

rienffls et consuetadine laudabili et antiqua legitime 
prescripta ac a tempore et per tempus cujus contrarii 
memoria hominimi non ezistit, padfice et inooncusse 
notorie observata, dignoscantar pertinere : nos conside- 
rantes quod non nnlU bona hujusmodi obtinentes ab 
hac laoe indies subtrahuntur^ ac yolentes prout ex 
officio nostro pastorali astringimur jura et libertates 
eoclesiie nostrse Cantoariensis prsedictae conservare iilesa 
quoad admittendmn et recipiendum probaciones testa- 
mentorum personamm hujusmodi ubicunque infra nos* 
tram provinciBm Gantuariensem predictam deoedentium, 
hujusmodi testamenta qusecnnque insinuandum et ap- 
probandum, nee non adminiiftracionis omnium bono- 
ram hujusmodi testatorum seu aliorum ut premitdtur, 
obtinentium ab intestato decedentium^ in nostris civi- 
tate diooesi yel provincia existentium executoribus in 
testamentis hiigusmodi nominatis^ seu aliis juxt& juris 
exigentiam et" predictam oonsuetudinem approbatam 
committendum et bona hujusmodi auctoritate nostra 
si oporteat in c&sibus a jure permissis sequestrandum 
ac calccdum siye computnm administradonum hujus- 
modi bonorum audiendnm ac eis si fuertt faciendum de 
et super administradone eorum tuxjuietancias* facien- 
dum ac concedendum ac insuper quibuscunque judi- 
cibus nobis inferioribus etiainsi episoopali fulgeant 
dignitate et aliis quotiens de jure fuerit fadendum, nee 
quisquis in premissis Contra prerogatiyam et consue- 
tadinem predictam attemptent vel faciant aliqualiter 
attemptari inhibendo ad querelasque et suggestiones 
quascunque in hac parte vel premissorimi occasione in 
forma juris rescribendum^ nee non in omnibus et sin- 
gulis causis et negoties premissis oonjunctim et divisim 

g2 



84 INTRODUCTION. 

• 

qualitercunque concermentibus, sive ex officio mero 
mixto aut promoto seu ad cajuscunque partis instan- 
tiam metis quovis modo sive movendis cognoscendum^ 
hujusmodis quecausas etnegotiacum suis emergentibus 
incidentibus et connexis quibusctmque judiciali calculo 
terminandum cseteraque faciendum et expediendum 
quee in premissis seu eorum aliquo necessaria fueiint 
vel opportuna, (insinuacione^ approbacione testamen- 
torum et bonorum administracionis commissione quo- 
rumcunque episcoporum, ducum, comitum, baronum, 
jifilitum ac aliorum nobilium diets nostra provincieB^ 
ut premittitar, decedentium^ et finalis oomputi sive ra- 
ciodnii administracionis hujusmodi bonorom audidone 
nobis specialiter reservati8(^),) tibi, de cujus fidelitate 
et drcumspectionis industria gerimus plenam fidem, 
committimus vices nostras cum cujudibet coercionis 
canonicee et ea quae decreveritis execudoni debitffi de- 
mandandi potestate^ ad premissaque omnia «t singula, 
ut premittitur, fiunendum et exercendum, te nostrum 
prcefidmus et deputamus commississarium generalem, 
sigillis tamen et signetis quibuscunque doctorum 
defunctorum nobis et canceUario nostro specialitur 
reservatis. Volumus autem quod veras copias testa- 
mentorum et commissionum hujusmodi fideliter re- 
mittas. Dat.in Hospitio reddentisB nostrsB Londoniis, 



(j:) The reservatioii of the et ugilla cunctomm (i. e. episco- 

arciibishop may be explained by porum) prater eum qui optimut 

a passage in Archb. Parkers sit;" but the archiepiscopal re- 

" De Antiquitatse Britannics £c- gisters, which are undoubtedlj of 

clesise." in the " Privilegia sedis more authority, shew that the 

Cantuariensis et Prerogative " of ** pontificalis annulus " was the 

that work (p. 41) he says, that perquisite of the archbishop, 

the archbishop claims, as a sort (Wmch. fo. 17, Walter Reyn. 

of ecclesiastiod heriot, '< annul! fo. 17.) 



INTRODUCTION. H5 

quarto die mensis Octobris, anno Domini millesimo 
CCCC™» XLIII, et nostrae translacionis primo'* (y). 

In accordance with the reservation contained in this 
commission, we find in the following month (Novem* 
ber 22, 1445,) the archbishop administering the oath, 
at his palace of Lambeth, to the executors named in 
the will of the celebrated Lyndewode, who had died 
honomied with the prelacy of St. Davids {z). 

But this privilege was not long coveted by the me- 
tropolitan. He afterwards conceded to his commissary 
the complete possession of the prerogative. 

These were tiie final arrangements of the archbishop 
in Tepurd to the exercise of his prerogative. The con- 
stitation of the court which Archbishop Stafford formed 
for this exdosive purpose has ever since> with the 
solitary exception I have just mentioned, remained in 
exactly the same condition. 

The enjoyment of the prerogative for more than two 
centuries having now founded a prescriptive right in 
the archbishop, it might have been imagined that all 
opposition or question respecting its legality would 
have been bytiiis time effectually discouraged. But 
the fact was otherwise. During the primacy of Morton, 
Richard Hill, the Bishop of London, revived the old 
contention with his metropolitan. It would appear 
that he acted on the assumption that the question was 

(y) According to Archbishop non eranty sed officio mero gere- 

Pinrker, there would seem to be bat. • • • Sed cancellarii 

a distinctioii between the arch- et auditorum officia in unum diu 

bishop's Ticar-general and his coUata sunt qui iu ecclesia Pau- 

chancellor. He says, '^Finiti- lina et Londinensi consistorio 

mns et conjunctua his (i. e. audi- judicia dat. (p. 46.) 

toribus audientis) auondam fult (a) MS. Regr. J9hn Stafford, 

archiepiscopi cancellarius, qui ea fo. 142. 
quae contentiosie jurisdictionis 



86 INTRODUCTIOIQ. 

still an open one, as the appeal which had been inter- 
posed, in the case of the Bishop of Lincoln, to the 
papal court, had never been prosecuted to a definitive 
sentence. But the triumph of the metropolitan, and 
the submission of his diocesan, were the necessary re- 
sults of this dispute (a). 

The right was at a subsequent period acknowledged 
by the statute of appeals, (24 Hen. YIII., c. 12,) which, 
though it restrained the general exercise of the extraor- 
dinary power of the metropolitan, expressly reserved 
the prerogative of the two Archbishops of Canterbury 
and York in testamentary matters* 

There was another branch of practice connected with 
the testamentary jurisdiction, the existence of which 
would scarcely be suspected by the modem reader. 
It is the recovery of debts on certain occasions. 

For a long period, actions of this nature were insti- 
tuted solely in the Ecclesiastical Court, whenever the 
debt in question formed part of the estate of a deceased 
person; or when, on the contrary, it constituted a 
charge upon it, being in the one case at the instance of 
the executor or administrator, and in the other of a 
creditor of the deceased. It was compulsory on the 
former to commence proceedings for this purpose in the 
spiritual court, as it was at the same time equally incum- 
bent upon him to submit to them, if brought against 
himself by a creditor, without either party being per- 
mitted to invoke the aid or interference of the secular 
courts in the shape of a prohibition. 

It will lessen our surprise that the Church should 
have once asserted the cognizance of debts, if we con- 

(a) MS. Rcgr. Morton. 



INTRODUCTION. 87 

dder that, in the early age of ecclesiastical jurisdiction, 
unless the executor had recourse to the Court Christian, 
he would have no means whatever of recovering any 
debt Vine to his testator ; for the common law gave to 
him, qud executor, no remedy at all. The character of 
executor, either testamentary or dative, was imknown 
to our municipal law, and he could, therefore, have no 
penona standi in its courts. He was the creation, as 
the other was the eltve, and foster child, of the canon 
law. 

Before the jurisdiction was narrowed by the encroach- 
ments of the common law, the ecclesiastical tribunals, 
having the entire and imlimited administration of a 
deceased's personal estate, necessarily, and without 
infiringement on the rights of the latter, embraced 
certain questions of debt, for without them they could 
scarcely be said to afford to suitors that effective relief 
which had been contemplated by the legislature when 
it assigned the testamentary jurisdiction into the hands 
of the Church. 

This power belonged, therefore, to the Ecclesiastical 
Court, by a fair construction of the original provisions 
of Magna Charta. 

But the institution of an action of this nature, gene- 
rally and irrespectively of the administration of a de- 
ceased's estate, was invariably, and upon all occasions, 
discountenanced by the common law judges, as trench- 
ing too largely on their exclusive province, without, as 
they might consider, a sufficient show of reason or prac- 
tical utility for the attempted usurpation. The damages 
which the jealousy of those courts, in a case of this 
kind, constantly awarded to the individual who, from 
being the defendant in the preceding action, had now 



88 



INTRODUCTION. 



changed sides and become himself the plaintiff^ by ob- 
taining the writ of prohibition^ ilirnished the discomfited 
litigant with such ample means of retaliating upon his 
hitherto victorious adversary, that we can hardly wonder 
at the frequency of the applications, sometimes just, 
and more often the reverse^ which appear in the common 
law records of the times. 

In these cases the prohibition was granted on the 
suggestion that the suit entertained in the Ecclesiastical 
Court was concerning chattda which do not relate to a 
wiU or marriage (b). 

A distinction was subsequently introduced, which 
allowed a debtor to sue in faro eccksiastico, under cer- 
tain circumstances only, notwithstanding his debt might 
rank under the general definition before given. 

The earliest author in whose pages we find an enu- 
meration of these restricted cases is Fleta. He says, 
^^ A testator cannot by his will dispose of his actions for 
debt upon which he had not obtained judgment in his 
lifetime. If, however, he had so obtained judgment on 
them, they are to be considered in bonis testatorisy and 
belong to the executors in/oro ecclesiastico. The mere 
right of action he has no power to dispose of, and it 
consequently accrues to the next of kin, to whom it is 
competent to institute the necessary proceedings in 
foTO sectdari*^ (c). 



(b) Abbreviatio Placitonim, 
vol. 5, p. 107, 25 Hen. III. and 
passim, *^ Catalla qute non sunt 
de testamento vel matripionio.'* 

(c) Fleta, lib. 2, c. 57, p. 126, 
edit 1685. "Testator autem 
actiones suas legare non potest, 
eo quod actiones debitorum non 



fuerint cognitse neque convicts in 
vita testatoris, sed hujusmodi 
actiones competunt hsredibus. 
Cum antem convictae fuerint vel 
recognitse tunc sunt quasi in bonis 
testatoris, et competunt execu- 
toribus in foro ecclesiastico. Si 
autem competant hsredibus ut 



INTRODIJCTION. 89 

Tliis refinement was the prelude to the gradual de- 
cline and extinction of this portion of the jurisdiction 
of the Church. 

The following are a few instances shewing the exercise 
of this jurisdiction at an early period :— r 

In 28th Henry III. the official of Exeter cited the 
Abbot of Forde^ as the executor of Robert de Courtenay, 
autcritaie ordmaridy into his court to answer to certain 
creditors of that deceased. The King thereupon pro- 
hibited the official, firom compelling the abbot, '^ ad red- 
dendum aliis creditoribus debita quse debuit,'^ until he 
should have made payment of a debt which the deceased 
owed to the Eang himself. The writ adds, '' Nisi con- 
stiterit quod catalla prcedicti Roberti, quee sunt preedicto 
abbati, satisfiiciant ad solutionem aliorum et nostro- 

TUXS^(d). 

In 42 Henry III. a like prohibition was granted 
against tiie archdeacon and the official of Tork, '^Ne 
fratrem GUbertum de Leyseton monachum et alios 
executores testamenti Walteri de Leyseton, quondam 
vice oomitis Lincolniffi vexent occasione bonorum dicti 
Willielmi, neque de eisdem bonis placitum in curia 
Christianitatis teneant, quousque per ipsos executores 
R^ fuerit satisiactum de debitis qued Regi debuit''(e). 

This jurisdiction endured for some time, for we find 
in 1319, in the articles of agreement between the Arch- 
bishop of Canterbury and the Bishop of Lincoln, that 
it still existed as an essential and ordinary incident of 

pnedictum est in faro secular! tiquitieB of the Exchequer of 

debent terminari, quia antequam the Kings of England, p. 663, 

convincantor, et in foro debito edit. 1711. £x memor. 28 

noD pertinet ad executores ut in Hen. III. Rot. 4, b. chap 23. 

foro ecclesiastico con vincantur." (e) lb. Ex. Memor. 42 Hen. 

{d) Madox's History and An- II L Rot. 14, a. 



90 INTRODUCTION. 

the general ecclesiastical judicature. The Bishop of 
Lincoln asserted a claim for ^^ cognidones causarum 
qtiedper creditores, vel legataries^ vel quoscunque alios, 
querelantea contra executores iestamentortan hujus^ 
modi pro bonis preedpue decedentium in sua civitate vel 
diocesi existentibus.^' But the exclusion of the testa- 
mentary executor from the common law courts began 
at length to be gradually relaxed. In Fleta^s time, 
viz., probably about the beginning of the reign of Ed- 
ward III. his representative character had already been 
recognised there in some instances. He says, ^^er- 
missum est tamen quod executores agant ad solutionem 
in foro secular! aliquando'^ (e). 

But even when the immediate executor was placed 
upon tlie same footing that he stands on at the present 
time, the executor of an executor was not permitted to 
sue or be sued in the King's Court until 1352. 
(25 Edw. III.) The latter was then put in a similar 
position, in regard to all questions concemmg the estate 
of tike remote testator, and in 1357 (31 Edw. III.) the 
administrator or executor dative had the same advan- 
tages and responsibilities '^ en la Court du Roi,'' ex- 
tended to him also. 

After these enactments, it appears to have become a 
rule that the Ecclesiastical Court should not try a debt 
of any nature, and that as the subject could obtain his 
remedy at common law, he had, therefore, no right to 
proceed for relief in the ecclesiastical form, and accor- 
dingly prohibitions were awarded on that suggestion 
alone, without any further question or demur. 

But even so late as the reign of Henry the Fifth, we 
find, by a complaint of the Commons, that the Eccle- 

(f) Fleta, p. 126, as before. 



INTRODUCTION. 



91 



siastical Court still endeavoured^ as of old, to exercise 
this partial jurisdiction orer matters of debt, though 
scarcely with the good-will or for the benefit of the 
nation, if we may give full credence to the querulous 
statements of its representatiyes in Parliament. 

The consistent and persevering practice, however, 
which this petition shows, may lead one to suppose that 
the Ecdesiastical Courts were not at all willing to re- 
linquish this branch of tiieir ancient judicature, nor, as 
long as resistance eould avail, to succumb to the attacks 
of their c(nnmon-Iaw rivals, on a point of authority 
which they had in all former ages possessed in perfect 
and unmolested tranquillity as an undoubted incident 
of their administrative power, and which, though gra- 
dually overruled by the judges, had, moreover, never 
been expressly repealed by any act of the L^slature. 

The petition or bill to which we allude was presented 
by the Commons in the second year of the reign of 
Henry V. (1414), and sets forth ^^ that divers H^e sub- 
jects of the King are, firom one day to another, cited 
into the Courts Christian to answer to divers persons 
as well of things touching frank tenement, debt, tres- 
pass, covenant, and others of which the conusance 
belongs to the Court of the King, as of matrimony and 
testamenf^ {/). 



(/) Rotdi Parliamentoruro, 
vol. 4, p. 18, No. 5, " Item 
priont les communes q* come di- 
rene% lieges N're S'r le Roi sont 
citees de jour en autre, d'appur 
roir en Court Christienne ae- 
Taxnt juges espiritue, a y re- 
spondre as diverges persones si 
bien des cboses q' touchant franc 



tenement, dette, trespasses, cove- 
naunts et autres des aueux la co- 
nusance appartient ai Court N're 
S'r le Koi, come de matrimonie 
et testament, et quant tieux per- 
sones issint citees appieigent et 
demandent un libel ae ceo que 
lour est surmys," &c. &c. 



92 INTRODUCTION. 

This jurisdiction appears to have soon after died a 
natural deaths for in 1443^ (the date of the commission 
of Alexander Prowett,) we find no reference whatever 
made to it. 

On the Continent, the authority of the Ecdesiastical 
Court was made ancillary to the recovery of an ordinary 
debt in a manner which does not appear at any time to 
have been ventured upon in this country. On the 
neglect or refusal of the debtor to satisfy the demand of 
his creditor, the latter applied to the court of the bishop 
of the diocese, who forthwith entertained the suit on a 
hew and entirely different principle (jr) ; viz., by viewing 
the non-payment of the debt as a constructive breach of 
conscience or morality. The court accordingly, consi- 
dering its jurisdiction well founded on this latter ground, 
first monished the debtor to comply witih the demand 
in question if justice required it, and on his contu- 
maciously persisting in his former refusal, proceeded to 
fulminate its spiritual terrors in the usual manner upon 
the recusant, who would then, without further discus- 
sion, after the lapse of forty days firom the sentence of 
excommimication, be attached by the powers of the 
secnkr arm and detained in confinement tiU his con- 
tempt were fully absolved, which could only be accom- 
plished by a due dischaige of the principal daim and 
all its consequential expenses. 

We have no evidence to show that this sideway of 
prosecuting an individual in the Ecclesiastical Court, 



(g) Ducange, sub voce Excom- de Senevilla propter pecuniam 

mun. DecreL Gree. IX., lib. 9, quam debebat, vinculo fuisset 

tit. 3, c. 24. " Ad aures nostres excommunicatioDisadatrictuscre- 

perveniMe noveris quod cum C. ditoribus eatisfecerit,*' &c. &c. 



INTRODUCTION. 93 

for a debt of a purely secular nature^ ever prevailed, or 
was even attempted in this country. 

Tet a nearly analogous process was certainly esta- 
Uished here, by which the performance of a sworn con- 
tntct or engagement which one of the parties had 
omitted to fulfil, was compelled under the form of suit 
for perjury, or lasio fidei, ostensibly instituted for 
the moral punishment only of the offender. 

Much of tiie equity of the modem Court of Chan- 
cery, was at first administered by the Ecclesiastical 
Consistories; and in many cases it should seem to have 
been not merely the result of a concurrency of juris- 
diction, but to have been the subject matter of the 
Ecclesiastical TVibunal alone, the equity of which was 
then of a wider range and more extended powers than 
it has now long since possessed or asserted. 

In the infancy of the Court of Chancery, a complete 
equitable jurisdiction, on a variety of matters, was for 
want of an opposing claimant vested in the Ecclesiasti- 
cal Courts, firom which, on the rise of the former into 
more general power and utility, it was at length trans- 
ferred, until in modem times but scanty traces of it 
are fbfund to exist. 

The term kesio ftdei, the foundation upon which this 
ample jurisdiction reposed, was sufficientiy comprehen> 
sive to embrace all breaches of conscience, which accor- 
dingly, of whatever quality or degree they might be, were 
ix>mbated or relieved by the equity of the Courts 
Christian. 

The necessity for the existence of such a tribunal 
will require no apology in these days, when it is so well 
known that the common law, from its more confined and 



94 INTRODUCTION. 

literal character^ has neither the power nor the inclina- 
tion^ in certain cases^ to afford to the suitor a due re- 
medy for his grievance. 

The ecclesiastical judge therefore claimed a jurisdic- 
tion in all cases of oath and solemn promise on all oc- 
casions^ or what in common equity assimilates thereto, 
a promise of any nature, obtained without extortion and 
resting on mutually fsir and just considerations. 

Lyndewode gives us a lucid statement of the mode of 
proceeding in the cause of kesio fidei, in order to avoid 
the obstade of prohibitions, which in his time began to 
assail it. 

A. libels B. that the latti»r by interposition of his 
faith, or by his oath in some other manner, promised 
and bound himself to A. that on sudi a day he would 
pay, &c., but afterwards minus canonice refused to 
fulfil his promise, in violation of his oath which by the 
divine and canon laws he is bound to perform under 
pain of mortal sin, wherefore the complaiiiant prays 
that on proof of the fact the judge will decree and com- 
pel the defendant to observe hb promise and engage- 
ment, by means of canonical censures. 

By this method of proceeding the. complainant not 
only obtained the infliction of a suitable penance upon 
his opponent for the sin wbidi he had committed, but 
also a civil remedy, of a more gratifying kind, in the 
compulsory* fulfilment of his, promise or obligation; 
satis&ction of the wrong being, according to the canons 

(A) Lyndewode, lib. 5, tit 15, oath had been taken by the de- 

de ptenis. It was some time called feodant^ the catiiie was more pro- 

Jidei tratugrestio (id.) and also tn- perly styled one of perjury, but 

terpositiofideL Ducange sub voce the terms were freauently, if not 

Curia Christiaaitatis. Where an generally, confoanoed. 



INTRODUCTION. 95 

of the Chuich^ a necessary and essential acoompaniment 
of penance (j). 

On this broad suggestion of breach of fiedthy the 
ecclesiastical judges also exercised the power of revising 
all uncamcionable contracts and transactions, although 
otherwise in no way connected with the jurisdiction of 
the Church {k). 

We have a record of suit of this nature, which 
occurred in the second year of the reign of King John. 
The circumstances which attended it were as follows: — 
Eberard of Binetrie, having made an extortionate bar- 
gain or rather an unfidr exchange of an estate with his 
brother Herbert, the latter on discovering the cheat 
forthwith instituted a suit pro lasione fidei in the 
Court Christian, to compel a restoration of the land in 
question, or at least to recover a fidr and equitable com- 
pensation for it» Though the other party obtained a pro- 
hibition on the usual suggestion that the Ecclesiastical 
Court had to his prejudice entertained a suit ^' de laico 
feodo nto/^ the courts of common law refused to interfere, 
and the suit in the Ecclesiastical Court was allowed to 
proceed without further interruption or cessation. 

In the same manner, in the 25th year of the reign of 
Henry IH., Master Adam of Kaukeberg impleaded 
William the Chaplain of Newton m the Court Chris- 

(t) This mit to obtain a debt (A) Placit . abbrev. Rot. 21, 

was afWrwards totally prohibited. 2 Job. Eborardus de Binetrie 

See YefT Book, 22 Eow. 4, 206, queritur ^uod Her^bertus frater 

Wright T. Wrieht, (GwiUim on ejus ti»vt eum inplacitum in 

Tithes, p. 169.) " If I owe one curia Xianitatis de laico feodo 

£10, and swear to pay him by a sno contra prohibieionem Justic 

certain day, and upon that he &c. Herebertus dixit <juodimp]a- 

sues me in the Spiritual Court, citavit eum super Isesionem ndei 

pro Uttkfne fideif a prohibition lies, suae de quodam escambio teme 

for he may have an action of ouam Eberardus ei abstulit. Dies 

debt against me for thi% at com- oatus et interim remaneat placi. 

mon law.*' turn in Curia Chriitianitatis* 



9(5 INTRODUCTION. 

tian on the ground of his having violated a certain com- 
position or agreement formerly made between them^ by 
which he^ the plaintiff^ was damnified to the extent of 
twenty marks (Q. 

This suit^ the precise nature of which does not appear^ 
beyond the circumstance of its being with a view of ob- 
taining a compensation for damages^ was afterwards 
prohibited on some special grounds, and an action was 
then brought by the chaplain for the same purposes at 
common law. 

There is a peculiarity in the constitution of the Ec* 
desiastical Courts, which deserves some further remarks 
before I end €tns sketch, viz. their liability to be cor- 
rected by prohibitions from Her Majesty's Courts on any 
occasion of their overstepping the boundary of the 
jurisdiction assigned to them by law. This power was 
expressly reserved to the Crown by the ordinance of 
William I. (m). 

The Ecclesiastical and Secular Jurisdictions, at the 
present time, so well imderstand the extent of their 
respective provinces, that an interference of the latter 
with the other is of extremely rare occurrence. 

In early. times the case was widely different; and the 
royal prohibition was a wholesome and necessary re- 
medy against the excesses and dangerous caprices often 
exhibited by the Courts Christian in refining on the 
broad and general principles of the law which they 
inculcated. 

As a proof that almost any thing may be construed into 
a breach of the morality of which those courts have ever 
been the authorised guardians and vindicators, the follow- 



(/) Placit, abbrev. vol. 14, laicus homo alium hominem, sine 
p. 108, 25 Hen. 3. justitia, episcopi ad judicium ad- 

(m) In the words nee aliquis ducat. 



INTRODUCTION. 97 

ing is an instance in point. In 7 Edward I.^ Master 
Robert Picheford having fidled in an action at com- 
mon law, the chagrin and dissatisfaction which he 
naturally felt at his defeat, prompted him to the in- 
genious proceeding of a suit for defamation in the Ec- 
clesiastical Court against the majority {plurmi) of the 
jurors who had returned the verdict which, as he thought, 
had cast a shur and reproach upon his character (n). 

We have no means of knowing whether the eccle- 
siastical judge would have promulged a sentence in his 
favour, for all further proceedings were estopped at an 
early stage of the suit by a prohibition, and an action 
at common law was then, in turn, commenced by the 
jurymen, who recovered damages against the plaintiff in 
the former cause of defamation. 

But tiie fadhty of obtaming prohibitions exposed tiie 
Church and her ministers to many inconveniences, and 
the suitors to much injury, the result of the misrepre- 
sentation or falsehood of the suggestions on which they 
were frequentiy obtained (o). When Humphrey, the 
Archdeacon of Dorset (in 25 Hen. 3), cited William of 
Coleville into his consistory, to answer a charge of 
adulterous conversation, the latter contumaciously ab- 
sented himself, for which the ordinary at first sus- 
pended him ab inffressu ecclesicBf and finally pronoimced 
a sentence of excommunication. But the delinquent 
was able for a time to elude the reach of justice, by 
procuring the archdeacon to be prohibited from pro- 
ceeding further in the suit, on the pretence that he was 



(n) Abbrev. plac. p. 270, rot. (o) Abbrev. placit, rot. t3 in- 
8, 7 £dw. 1. <* Eos implacitavit dorso, 25 Hen. 3. 
pro eo quod ipMim diffomave- 
mnt." » 



98 INTRODUCTION. 

holding a plea *' de rapto et de pace domini regis in- 
/racta'' (p). 

Another usual pretence^ when a suit for tithes had 
been instituted by the impoverished incumbent, in the 
court of the bishop^ was for the adverse party to sug- 
gest that the ecclesiastical ordinary proceeded '^ de Unco 
feodo^ or in the matter of a lay fee. 

In the reign of Henry the Third, these prohibitions, 
from their finequency and number, trenched so mate- 
rially on the autonomy and the spiritual jurisdiction of 
the Church, as to alarm the fears on excite the indig- 
nation of the heads of the English Church. In fact, 
the abuse had increased to so considerable an extent 
that even the existence of the consistories appeared 
endangered ; but, fortunately for the Church, the pri- 
macy of Canterbury was then wielded by a prelate of 
stubborn and imcompromising principles. Boniface, 
the archbishop, was a man, from temper and constitu- 
tion, pre-eminently adapted to meet the turbulent spirit 
of the time, as one who was neither disinclined nor 
afraid to counteract an evil by the application of a 
remedy equally severe. In 1260 he convened a pro- 
vincial synod, at which the general grievances of the 
Church were fully discussed. The assembled clergy, 
urged by the example of their resolute metropolitan, 
determined on a penal enactment, which, to modem 
notions, can hardly appear in any other light than that 
of extreme temerity or arrogance (q) ; but if we regard 
the fallen and desperate state of the Ecclesiastical 
Jurisdiction, it was in all probability the safest and 



{p) Abbrev. Placit, rot. 5, p. {q) Lyndewode, lib. 5, c. 15, 
106, and passim. de poenis. 



INTRODUCTION. 99 

most pradent course of policy which it was then iii 
their power to adopt. 

The various causes in which prohibitions were ob- 
tained on fictitious representations or suggestions are 
thus enumerated in the constitution passed at this 
ooundl^ Tiz.^^-4he admission of deigymen to vacant 
churches or chapels ; the institution of rectors ; the 
excommunication or interdiction of the deigy by their 
prelates ; the dedication of churches ; the celebration 
of orders ; questions respecting tithes^ oblations, or the 
boundaries of a parish ; peijury, transgression of faith, 
sacrilege, the violation or perturbation of the liberties 
of the Church, especially of those which were guaran- 
teed by the royal charters ; personal suits, or actions of 
any nature between clerks and laymen. The fines and 
distresses levied upon the bishops, in the event of any 
contumacy or defitult of their inferior deigy, for whom 
the law considered them responsible, wound up this 
series of complaints. 

The antidote to all these evils, proposed by the mer 
tropolitaii and his sufiragans, and confirmed by the 
representative body of the provincial dergy, was as 
harsh as the necessities of the case seemed to demand. 
The decrees of the council commenced by providing 
that thencefortii no archbishop, bishop, or prelate, 
when summcHied on merely spiritual matters, should 
attend or obey the mandate of a secular judge, to 
whom no authority was given to adjudicate over the 
Lord's anointed; but, to save the king's honour, it 
was unanimously agreed that, whenever this occurred, 
the prelate who was most intimatdy concerned in the 
transaction should respectfiilly inform the king in writ- 
ing that he could not consistentiy, or without danger to 

h2 



100 INTRODUCTION. 

his order, obey the mandate^ which had issued in the 
royal name. 

The council then proceeded to make a sharp provision* 
against another evil of a glaring and oppressive cha* 
racter, viz., the practice of giving a fictitious description 
of the merits of a question, in order to obtain a prohi- 
bition. ^' If, perchance, the king, in his attachments, 
prohibitions, or writs of summons, shall have made 
mention, not of tithes, right of patronage, belied fiuth, 
or perjury, but of chattels ; not of sacrilege, or disturb- 
ance of the liberties of the Church, but of trespasses of 
her dependants and bailiffs (whose correction he asserts 
to appertain to himself) ; then, in such cases, the afore- 
said prelates shall intimate to him that the suits which 
they are taking cognizance of are not of patronage, 
chattels, or matters appertaining to his forum, but of 
tithes, sin, and other matters merely spiritual, and ap- 
pertaining to their office and jurisdiction, and to the 
health of souls, and shall admonish and entreat him to 
desist from obstructing them in the premises.'^ 

The bishop whose authority had been infringed was 
required by the coimcil to address, in person, a further 
admonition to the monarch, and if this failed of its 
proposed effect, the archbishop of the province, on 
receiving the information firom his suffiragan, with the 
assistance of two or more other bishops, or the Bishop 
of London with a like number of his brethren, should 
visit the king for the purpose of giving a still further 
and peremptory monition ; and if the latter, in spite of 
these remonstrances, still persisted in refusing to inter- 
fere or discharge the attachments and processes com- 
plained of, a decree of excommunication and suspension 
should be issued by all the diocesans in whose jurisdic- 



INTRODUCTION. 101 

tion the sheriffs by whom the obnoxious law was en- 
forced should reside or hold property. If the sheriffs 
persevered in their course, their residences or estates 
were to be subjected to a strict and effective interdict. 

Even here ecclesiastical boldness did not stop. In 
conclusion, the council made a further provision in case 
the king should not command. the obnoxious process 
to be stayed. The bishops and clergy at large were 
directed to lay even the boroughs and demesnes of 
majesty itself imder the same extensive sentence ; and 
if this penultimate proceeding was of no avail, all the 
dioceses of the province of Canterbury were to be 
involved in one general doom of excommunication. 

The extraordinary audacity of this synod was well 
calculated to strike terror and dismay into the heart of 
a very large portion of the nation, who saw, in a sup- 
pression of the rites of religion, the hopes of heaven 
held out to them by spiritual aid entirely annihilated 
for an indefinite period of time, through the captious 
quarrels of tiie lay tiibimals. 

Whatever effect the decrees of this council may have 
had in softening or allaying the evil complained of, it 
is, nevertheless, imdoubtedly true that the contest 
for jurisdiction continued, in some form or direction, 
tiuroughout the reign of every succeeding monarch, 
until the time of Charles the First, though never to 
the extent to which it appears to have been carried 
during the period I have before described ; for the dis- 
turbed state of the kingdom during the reign of Henry 
the Third, combined with his own imbecility and want 
of energy, had produced so many abuses in the general 
practice and administration of the law, that the easy 
and groundless procurement of prohibitions formed but 



102 INTRODUCTION. 

an item in a long list, although its effect upon the 
Church, in enabling her enemies to evade her censures, 
or openly assault her judicial constitution, wiib perfect 
and unlimited impunity, was in the highest degree 
destructive to her legitimate interests and powers. 

Thp Ecclesiastical Jurisdiction still remains, substan- 
tially, in the same condition as I have described it; it has 
weathered the malignant attacks of the puritans of one 
age and the reforming dissenters of another, and exhi- 
bits no symptom of decay. 

The above remarks are intended merely as a brief 
description of the rise and progress of the Ecclesiastical 
Courts, and have accordingly been confined to the 
more striking and curious features which they have 
exhibited, either in their origin, or in their subsequent 
extension and development* As their vicissitudes of 
jurisdiction ended witii the periods I have severally 
referred to, their fortunes, in the succeeding ages^ ex- 
hibit littie to interest the reader, and I, therefore, now 
conclude my sketch. 



103 



THE ECCLESIASTICAL JURISDICTION 

AND ITS DIVISIONS. 



As regards the scheme of Ecclesiastical Jurisdiction, 
England is separated into the two provinces of the 
Archbishops of Canterbury and York, and these again, 
for the purposes of immediate control, are subdivided 
into the dioceses of the respective bishops of the 
Established Church. In addition to the latter, there 
are also the jurisdictions of the deans and chapters of 
the cadiedral churches, and of the archdeacons, besides 
the peculiars, which admit of no regular classificfition. 
The matter of the Ecclesiastical Jurisdiction, which 
is the subject of this compilation, belongs, in all its 
branches, in the first instance, to the consistorial courts 
of the archbishops and bishops. The Prerogative 
Court of the Archbishop of Canterbury is confined to 
the testamentary questions of the province, and the 
Arches' Court of Canterbury is only appellate. 

The courts of the deans and chapters have exclusive 
jurisdiction over matrimonial suits arising within their 
precinct, but now interfere with little else. 

From the Arches and Prerogative Courts of Canter- 
bury, as also firom the corresponding courts of the 
province of York, the appeal lies to Her Majesty the 
Ckueen in CounciL 



104 



THE PRACTICE 
OF THE ECCLESIASTICAL COURTS, 



AoRBBABLT to the scheme adopted in the introduc- 
tion, I commence with 

CRIMINAL SUITS. 

Criminal suits, as instituted in the Ecclesiastical 
Courts, are proceedings to punish and reclaim a sinful 
offender, by judicial admonition or an infliction of the 
severer censures of the Church. They purport to be 
brought />ro salute afdma, and are directed to the refor- 
mation of his manners and excesses. 

These suits are divisible into two classes, viz., those 
instituted against clergymen for a breach of the disci- 
pline of the Church, and those against laymen for any 
offence against morality involving a public scandal and 
evil example. 

Any individual has a competent interest to institute 
a suit in this form, the object not being conducive to 
any private end or advantage, but being solely applied 
ad pubUcam vindictam, to correct an abuse of which 
all persons have a right to complain; it corresponds, 
thei^ore, witii an indictment at common law. 



THE ECCLESIASTICAL COURTS. 105 



Against Clerks, 

I propose to begin with the subject of proceedings 
against clerks of the United Church of England and 
Ireland, for the enforoement of its peculiar discipline. 
These suits, as regards the form in which they are 
brought, have received a very considerable modification 
and change under the provisions of 3 and 4 "^^ct., 
c. 66, intituled ^ An Act for better enforcing Church 
Discipline,^' 

The following is a brief summary of the provisions of 
that act : — 

Whenever a derk in holy orders^ of the Church CommiMion 
of En^and and Ireland, shall be dunged with any "^^"^'y* 
oflfenoe against the ecclesiastical laws, or there may 
exist scandal or evil report concerning him, as having 
80 Dfiended^ the bishop of the diocese within which the 
offence is alleged or reported to have been committed, 
is empowered^ on the application of any party com- 
plaining thereof, or, if he shall think fit, of his own 
mere motion, to issue a conunission under his hand and 
seal, directed to five persons, of whom one shall be his 
▼icar-general^ or an ardideacon, or rural dean, within 
his diocese;, for the purpose of making inquiry as to the 
grounds of such diaige or report. 

Notice of the intention to issue such commission, Notice there- 
under the hand of the bishop, and containing an inti- ^ ' 
mation of the nature of the ofience, together with the 
names, addition, and residence of the party on whose 
application or motion such commission shall be about 
to issue, is to be sent by the bishop to the party 



106 THB PRACTICE OF 

accused^ fourteen days at least before such commission 
shall issue. 
IVoceedings The proceedings of the commissioners are r^ulated 
doners. ^ ^® following manner : — ^They^ or uiy three of them, 
ishall examine, upon oath, or solemn affirmation, or de- 
'daration, as the case may be, dnd which oath, or affir- 
mation, or declaration shall be administered by them to 
all witnesses who shall be tendered to them for exa- 
mination, as well by the party alleging the truth of 
the charge or report, as by the party accused, and to 
all witnesses whom they may deem it necessary to 
summon, for the purpose of fiilly prosecuting the 
inquiry, and ascertaining whether diere be sufficient 
prinndfade ground for instituting fiirdier proceedings. 
Notice of the Notice of the time and place when and where every 
"^^^H^^^ such meeting of the commissioners shall be holden is to 
en. be given in writing under the hand of one of sudi com- 

missioners to the party accused, seven days at least 
before the meeting. And the party accused, or his 
agent, may attend the proceedings of the commission 
and examine the witnesses. 

All these preliminary proceedings are to be public, 
unless, on the special application of the party accused, 
the commissioners shall direct that the sam^, or any 
part lliereof, shall be private. And at the closing of 
these proceedings, whether public or private, one of the 
commissioners shall, after due consideration of the de- 
positions taken before them, openly and publicly declare 
the opinion of the majority of the commissioners 
present at such inquiry, whether there be or be not suf- 
ficient primd facie ground for instituting further pro- 
ceedings. 



THE ECCLESIASTICAL COURTS. 107 

The neact step to be taken by the commissioners is as Commission. 
follows :— They, or any three of them, are to transmit to ®"* ^^^^ 
the bishop nnder their hands and seals the depositions 
of the witnesses taken before them, and also areport of 
the opinion of the majority of them, whether or not 
there be sufficient prmd fade ground for instatuting 
further proceedings. 

The report is to be filed in the registry of the diocese, 
and if the party accused shall hold any preferment in 
any other diocese or dioceses, the bishop to whom the 
report b made shaD transmit a copy thereof and of the 
the dqpositions to the bishop or bbhops of such other 
diocese or dioceses, and shall also, upon the application 
of the party accused, cause to be delivered to him a 
copy of the report and depositions, on payment of a rea- 
sonable sum for the si^ne. 

After this stage of proceedings has been aniyed at. Sentence of 
Ihe act empowers the bishop of any diocese within consent^ ^ 
which the party accused may hold any prefermenti 
with the consent of such party, and of the accuser, if 
any, in writing, to pronoimce, without any further pro- 
ceedings, such sentence as he shall think fit, not exceed- 
ing the sentence which might be pronounced in due 
course of law. 

If the conunissioners have reported that there is Articles. 
sufficient primd facie ground for instituting proceedii^, 
and if the bishop of any diocese within which the party 
accused may hold any preferment, or the party com- 
plaining shall thereupon think fit to proceed against 
the party accused, articles shall be drawn up, and when 
^proved and signed by an advocate practising in 
Doctors Commons, ahall> together with a copy of the 
depositions taken by the commissioners, be filed in the 



108 THE PRACTICE OF 

registry of the diocese of such last-mentioned bishop ; 
and any such party or any person on his behalf shall be 
entitled to inspect without fee such copies^ and to re- 
quire and have on demand from the registrar copies of 
such depositions^ on payment of a reasonable sum for 
the same. 
Service there- A copy of these articles when so filed shall be forth- 
®^' with served upon the party accused by personally de- 

livering the same to him or by leaving them at the 
residence-house belon^g to any preferment holden by 
him, or if there be no such house, then at his usual or 
last known place of residence. And the articles are not 
to be proceeded upon untU afler the expiration of 
fourteen days from the day on which the copy has been 
served. 
Notice to an- The bishop is also empowered, by writing under his 
S*'' "■ hand, to require ihe party to appear either in person or 
by his agent duly appointed, before him, at any place 
within the diocese, and at any time after the expiration 
of the fourteen days, to make answer to the articles 
within such time as to the bishop shall seem reason- 
able. And if the party shall appear, and by his answer 
admit the truth of the artidbs, the biiAop or his com- 
missary, specially appointed for that purpose, shall 
forthwith proceed ta pronounee sentence according to 
the ecclesiastical law. 
Service of All notices are to be served in the same manner, as is 
notices. directed in regard to the copy of the articles. 

Sentence of I^ the party accused shall refuse or neglect to a^^pear 
the bishop. ^^^ make answer to the articles, or shall appear and 
make any answer other than an imqualified admission 
of their truth, the bishop is empowered to proceed to 
hear the cause, with the assistance of three assessors. 



THE ECCLESIASTICAL COURTS, 109 

one of whom shall be an advocate who shall have prac- 
tised not less than five years in the court of the arch- 
bishop of the province, or a serjeant^at-law, or a bar- 
rister of not less than seven years standing, and another 
shall be the dean of his cathedral church, or of one of 
his cathedral cburdies, or one of his archdeacons or his 
diancellor. 

On the hearing of the cause, the bishop determines 
and pronounces sentence thereupon, according to the 
ecclesiastical hew. 

Every sentence, whether pronounced by the bishop 
or his commissary, is enforced by the like means as a 
sentence pronounced by an ecclesiastical court of com- 
petent jurisdiction. 

If, however, the bishop of the diocese within which Letters of re- 
Ae derk shall hold any preferment, or if he hold no pre- ^^ ^^l 
ferment, the bishop of the diocese within which the P«a1* 
offence is alleged to have been committed shall think fit 
either m the first instance, or after the commissioners 
have reported that there is sufficient primd fade 
ground for instituting proceedings, and before the filing 
of the aiticles, he may send the case by letters of 
request to the court of appeal of the province, to be 
there heard and determined, according to the law and 
practice of such court. 

No appeal is allowed firom any interlocutory decree or Appeals, 
order, not having the force or effect of a definitive sen- 
tence, save by the permission of the judge of such court. 

The appeal from the sentence lies to the archbishop, 
and shall be heard before the judge of the court of 
appeal of the province, and from his judgment there 
lies a further appeal to the Queen in Council. 



110 THE PRACTICE OF 

Limitadon of Eveiy suit against a clergyman for any offence 
*^^' against the ecclesiastical laws must be commenced 

witUn two years after the commission of the offence 
in question* 

But where proceedings are brought in respect of an 
offence for which a conviction has been obtained at com- 
mon law^ the suit may then be commenced against the 
person convicted at any time within six calendar months 
after such conviction, although more than two years 
shall have elapsed since the commission of the offence. 
Before proceeding to explain the practice more par- 
ticularly, I will first recapitulate the general cases ii) which 
articles are exhibited against clergymen for the several 
purposes of admonition, suspension, or deprivation. 

The offences for which a clergyman becomes amena- 
ble to the censures of an ecclesiastical tribunal, may be 
classed under the following general heads, yiz: — ^Neglect 
of his pastoral functions, violation of the obligations 
and duties of his sacred office, and disobedience or 
contumacy towards his ecdesiastical superiors. And 
they may again with a greater degree of particularity be 
enumerated as follows, the censure or punishment 
usually consequent upon them being at the same time 
distinguished. 

Crimes. Censures. 

Profligate life and con- Suspension ab officio et 
versation, adultery, fomi- beneficio for three years(a), 
cation, and incontinence. deprivation and suspension 

ab offic%o[b). 

(a) Watson v. Thorp. Phil. (6) Burgoyne v. Free. Add. 2, 

1, p. 270, Pawlett v. Head, Sir p. 414. Hagg 2, p. 456. Kit- 

Geo. Lee, 2, p. 565. Trower v. son v. Loftus, Mich. Term, 1845, 

Hurst, East Term, 1846, Arches. Arches. 



TUB ECCLESIASTICAL COURTS. 



Ill 



Sodomitical practices (c). 



Dmnkeiiness^ (habitual^) 
and accompanied by pro- 
fimoieas, obscenity of lan- 
guage, &c(iO 

Ditto not aggravated by 
other circomstances (e). 

Brawling in a church 
or diurchyard^ (by words 
only,)(/). 

Smiting or laying vio- 
lent hands on any person 
in a church or church- 
yard. 



Advisedly maintaining 
or affirming doctrine di- 
rectly contrary or repug- 
nant to the articles of 
reKgion as by law esta- 



Deprivation, or inhibi- 
tion from the performance 
of clerical functions* 

Suspension ab officio ei 
benefido for three yean. 



Suspension a£ officio for 
a less term* 

Under the general law, 
admonition or suspension 
ab officio f by 5 & 6 Edw. 
6, c« 4, suspension. 

By the before men-* 
tioned statute and 53 Geo. 
3, c 127, 8. 3, excommu- 
mcation, i. e. an impri- 
sonment for any term not 
exceeding sis months. 

Deprivation and inhibi- 
tion firom the performance 
of clerical functions. 



(c) EUenthorpe v. Myen and 

Mosiy Delcg. 1773. iSurder v. 

, Curt. 3, p. 823. Clarke 

▼. Heathcote, Mich. Term. 1S45, 

Arches. 

{ij Smpdera y. Davies, Add. 
1, p. 391. (for three yean.) 
Boraer v. Speer, Trm. Term, 
1841, Arches (for do.) Bur- 
der ▼. Jenkms, Trin. Term, 
1838; Arches (for do.) Bishop 
id Lincoln ▼. IHty, Mich. Term, 



1845, Arches (for do.) Brookes 
V. Cresswell, Hih Term, 1846, 
Arches (for eighteen months in 
addition to a suspension imme* 
diatelv preceding for the same 
period.) 

(e) Rowland V. Jones, Sir Geo. 
Lees, R. 2, p. 191, for a twelve- 
month. 

if) ^^ ^* Goodday, Hs^. 
C. R. 2, p. 1 38, suspended ab qfficto 
for a fortnight. 






112 



THE PRACTICE OF 



blished, and against the 
statute 13 Eliz* c. 12^ (an 
act for the ministers of 
the church to be of sound 
religion,) {g). 

Neglect of duty (A). 



Refusal to bury the 
body or baptize the child 
of a parishioner (i). 

Irregularities in reading 
the holy Scriptures, and 
varying the service from 
the prescribed form. 

Irregularity and indeco- 
rum in the performance of 
divine offices (A). 

Publishing the bans of 
marriage between persons 
not being parishioners, and 
manying such persons(m). 

Non-residence (n). 



Suspension ab officio et 
beneficiOy or ab officio 
merely. 

Suspension a6 offidOyfor 
three months, (68**^ Canon, 
1603.) 

Suspension ab officio. 



Ditto. 



Suspension ab officio, for 
three years, (62"^^ Canon). 



Suspension ab officio et 
beneficio or deprivation. 



(jg) Bishop V. Stone, Hagg. 
C. B. 1, pp. 424, 434. Saunders 
V. Head, Curteis 3, ^ p. 565. 
Hodgson V. Oakely, Tiin. Tenn. 
3846, Arches. 

(A) Argar v. Holdsworth, Lee, 
2, p. 515. Bennett t. Bonaker, 
Hagg. 3, p. 24. 

(i) Robinson v. Hutchinson 
and Hutchinson, Deleg. 1776. 
Kemp V. Wickes, Phil. 3, 



p. 300. Mastin v. Escott, Cur- 
teis 2, p. 692. Titmarsh v. 
Chapman, Curt. 3, p. 703. 

(ft) Newbery v. Groodwin, Phill. 
1, p. 282, suspension ab cfficio 
for a fortnight, 

(m) Wynn ▼. Davies and Wee- 
▼er, Curt 1, p. 69. 

(n) Fawlet t. Head, Lee, 2, 
p. 565. Davis v. Pope, Deleg. 
1794. 



THE ECCLESIASTICAL COURTS. 



US 



Officiating out of his 
diocese (o). 

Performing divine ser- 
vice viflioat a license fran 
the ordinary (jp). 

Ditto by a license sur- 
reptxtionsly obtained {q)^ 

Ditto after revocation 
of a license by the ordi- 
nary (r). 

Evil practices in obtain- 
ing orders^ institation^ &c. 
by procoring another to 
undergo a vicarious ex- 
amination^ &c. (s) 

SSmony (i). 

For disrespectful and 
disobedient conduct to- 
wards the ordinary (ti). 



Admonition under 48^ 
Canon. 

Suspension ab officio, or 
admonition. 

Revocation of license. 
Admonition. 



Suspension ab officio ei 
beneficio. 



Deprivation. 
Admonition, 



The following forms will illustrate the proceedings 
taken under the act of parliament^ in the several cases 
where the party complainings and the clerk shall have 
consented to sentence being pronounced by the bishop 
himself^ without further proceedings^ and also where 
no such consent has been given. 



(o) Gtttes v. Chambers, Add. (r) Hodgson v. Dillon, Curt. 2, 

3, p. 177. p. 388. 

Ip) Smith T. Lovegrove, Lee, (f) Bishop of London v. Havers, 

2, jp. 172. Keith ▼. Trebeck 1678, Arches and Delegates. 

Deteg. 1742. Hodgson v. Dil- (0 Dobic v. Masters, Phill. 3, 

km, Cona. of London, East Term, p. 1 71 . 

1846. (ti) Taylor v. Morley, Curt, 1, 

(9) Duke of Portland v. Bing. p. 470. 
ham, Uagg. C. R. p. 157. 



114 THE PRACTICE OF 



Notice of Intention to issue a Commission. 

Charles James, by Divine permission. Bishop of London, 
to die Honourable and Reverend Frederic Smyth 
Monckton, Clerk, Minister of the New Church of 
Saint Peter de Beauvoir Town, in the parish of 
West Hackney, in the county of Middlesex, and 
within our diocese and jurisdiction. 
Whereas application has been made to us under an 
act of Parliament made and passed in the session of 
Parliament held in the 3rd and 4th years of the reign 
of her present Majesty, entitled ^ An Act for better 
enforcing Church Discipline,^' by George Sheldrick, 
Clerk to the Inspector-General of Her Majesty's 
Customs, of No. 12, Hertford Cottages, Hertford 
Road, Kingsland Road, in the county of Middlesex^ 
and within our diocese, that we would issue a com- 
mission, under our hand and seal, for the purpose of 
making inquiry as to the grounds of certaui charges 
which he, the said George Sheldrick, is prepared to 
bring against you, the said F. S. Monckton, that you 
have offended against the laws ecclesiastical, by having 
been guilty of the foul crime of fornication and having 
taken indecent liberties with divers women within two 
years from the date hereof, and also with having been, 
upon divers occasions within the said period, in a state 
of intoxication, and otherwise misconducted yourself, 
whereby you have brought great scandal on the Church; 
we therefore do hereby give you notice that, by virtue 
and in pursuance of the said recited act, it is our inten- 
tion, after the expiration of fourteen days at least from 
the service hereof, to issue a commission under our 



THE ECCLESIASTfCAL COURTS. 115 

hand and seal to the five persons hereinafter-men- 
tioned, that is to say, — ^The Right Honourable Stephen 
Lnshington, Doctor of Laws, our Vicar- General; the 
Venerable John Sinclair, Clerk, Archdeacon of the 
Archdeaconary of Middlesex, in our diocese of London; 
the Reverend Richard Harvey, Clerk, Rector of the 
parish church of Homsey, in the county of Middlesex, 
and our diocese of London, and a Rural Dean within 
our said £ocese; the Reverend John Russell, D.D., Rec- 
tor of the parish church of Saint Botolph, Bishopgate, 
in tbe city and ifiocese of London; and the Reverend 
William Stone, Clerk, Rector of the parish church of 
Christ Church, Spitalfields, in the county of Middlesex, 
and diocese of London; for the purpose of making in- 
quiry as to the ground of such diarges. 

Given under our hand at London House, the 18th 
day of February, in the year of our Lord, 1845, and in 
the 17th year of our translation. 

C. J. London. 

Commission. 

Charles James, by Divine permission. Bishop of London, 
to our beloved in Christ, tihe Right Honourable Ste- 
phen Lushington, Doctor of Laws, our Vicar-Ge- 
neral; the Venerable John Sinclair, Archdeacon of 
the Archdeaconry of Middlesex, in our diocese of 
London ; the Rev. Richard Harvey, Clerk, Rector 
of the P^urish Church of Homsey in the County of 
Middlesex and our Diocese of London, a Rural 
Dean within our said diocese; tiie Reverend John 
Rossel, Doctor in Divinity, Rector of the Parish 
Church of Saint Botolph, Bishopsgate, in the said 

i2 



116 THE PRACTICE OF 

City of London and our Diocese of London, and 
the Reverend William Stone, Clerk, Rector of the 
Parish Church of Christ Church, Spitalfields, in 
the said County of Middlesex and our Diocese of 
London. 
Greeting — whereas application haih been made to us 
under an act of Parliament made and passed in the ses- 
sion of Parliament held in the third and fourth years of 
the reign of Her present Majesty, entitled " An Act 
for better enforcing Church Discipline,'^ by Geoi^ 
Sheldrick, of No. 12, Hertford Cottages, Hertford 
Road, Kingsland, in the county of Middlesex, and our 
diocese of London, Clerk to the Inspector-General of 
Her Majesty's Customs, to issue our commission for 
the purpose of making inquiry as to the grounds of 
certain charges which he the said G. Sheldrick is pre- 
pared to bring against the Honourable and Reverend 
F. S. Monckton, a Clerk in holy orders of the united 
Church of England and Ireland, and Minister or per- 
petual Curate of the perpetual Curacy, or Church of 
Saint Peter, otherwise Saint Peter de Beauvoir Town, 
in the parish of West Hackney in the said county of 
Middlesex and our diocese of London, and which 
charges are that he the said F. S. Monckton hath 
offended against the laws ecclesiastical, by having within 
two years last past, and within our said diocese of Lon- 
don, been guilty of the foul crime of fornication, and 
having during the said period, and within our said dio- 
cese of London, taken indecent liberties with divers 
women, and also by having been upon divers occasions 
within the said period, and within our said diocese, in 
a state of intoxication, and also by having within the 
said period, and within our said diocese, otherwise mis- 



TRE ECCLBSIA8TICAL COURTS. Il7 

conducted himself^ and that he has thereby brought 
great scandal on the Church: And whereas in pur- 
soauce of the said act we as the bishop of the diocese 
irithin which the sdd offences are alleged or reported to 
hare been committed, did on the 12th day of February, 
in the present year, 1845, being fourteen days and up- 
wards before the issuing of this commission, send a 
notice to the said F. S. Monckton, of our mtention to 
issue these presents, and which notice was duly deli- 
Tcred to him the said F. S. Monckton. Therefore, we 
Charles Janaes, by Divine permission. Bishop of Lon- 
don, being as aforesaid the bishop of the diocese within 
whidi the said offences are alleged to hare been com- 
mitted, do^ on the application of the said 6. Sheldrick, 
and in further pursuance of the said ad^ issue this our 
commission to yon the said Stephen Lushington, John 
Sinclair, Richard Harvey, John Russell, and William 
Stone, and do enjoin, authorize, and empower you, or 
any three of you, to make inquiry into the grounds of 
^ said charges to be made by the said O. Sheldrick 
against the said F. S. Monckton, and otherwise to pro- 
ceed in the execution of these presents, in the manner 
authorized and directed by the said act. 

Given under our hand and seal at London House, 
the 6th day of March, in the year of our Lord 1845, 
and in the seventeenth year of our translation. 

C. J. London. 

Notice of Proceedings under the Commission. 

To the Honourable and Reverend Frederic Smjrth 
Monckton, Clerk, Minister of the New Church of 
Saint Peter, otherwise Saint Peter de Beauvoir 



118 THE PRACTICE OF 

Town in the Parish of West Hackney in the County 
of Middlesex and Diocese of London. 
Whereas a commission has lately issued under the 
hand and seal of the Right Honourable and Right Reve- 
rend Charles James^ by Divine permission Lord Bishop 
of London^ in the words and to the tenor following, 
to wit. 

'^ Charles James, 

(&c.) '' 
Now I Stephen Lushington, one of the Commission^ 
ers in the foregoing commission mentioned, do, in pur- 
suance of the before recited act, hereby give you notdoe 
that a meeting of the Commissioners named and apK 
pointed under the aforesaid Commission, will be holden 
in the Common Hall of Doctors Commons, situate in 
the Parish of Saint Benedict, near Paul's Wharf, Lon- 
don, and place of judicature there on Friday, the 14th 
day of this present month of March, at 10 o'clock in the 
forenoon of the same day, and on such subsequent orother 
days and times as may be necessary, and which the 
said Commissioners may think proper to appoint for 
the purpose of making inquiry into the grounds of the 
said charges in the said commission mentioned, to be 
then and there made and brought against you the said 
F. S. Monckton, and otherwise to proceed in the execu- 
tion of the said conunission according to the terms and 
tenor thereof, and in the way and manner authorized 
and directed by the said act, and as unto law and jus- 
tice shall appertain. Dated this 6th day of March, in 
the year of our Lord 1845. 

Stepu£n Lushinoton. 



THE ECCLESIASTICAL COURTS. 119 

Report of Commissioners. 

To the Right Honourable and Right Reverend Father in 
6od^ Charles James^ by Divine permission. Lord 
Bishop of London : 
We, the undersigned, being four of the commis* 
sioners appointed in and by a commission, under your 
lordship's hand and seal, in the words following, to wit 
{recUing the commission inJiM), do hereby report to 
your lordship, that, in pursuance of the powers given 
to us under and by virtue of the above-recited commis- 
sion, we assembled in the Common Hall, in Doctors' 
Commons, London, on Friday, the 14th day of March 
last, on Saturday, the 15th day of the said month, on 
Thursday, the 27th day of the said month, and on 
the two following days, to execute the said commis- 
sion ; that, after the said commission had been read, 
the said Honourable and Reverend Frederic Smyth 
Monckton being present, George Sheldrick, in the said 
commission mentioned, tendered to us, for examination, 
the following witnesses, who were thereupon sworn by 
us, as directed by the act, and examined in our presence. 
(Here/oUow the names of the witnesses.) That the said 
George Sheldrick then brought in a printed copy of 
an annual report of the De Beauvoir National Schools, 
marked with the letter A, and annexed hereto, and which 
said copy was admitted by the said Frederic Smyth 
Monckton. That we then heard counsel on behalf of 
the said Frederick Smyth Monckton, after which the 
said Frederick Smyth Monckton tendered to us for 
examination the following witnesses, who were there^ 
upon sworn by us, and examined in our presence 
{here follow the names of the witnesses) ; and we after- 



120 THE PRACTICE OF 

wards heard counsel on behalf of the said George 
Sheldrick. 

We do farther report that, after due consideration of 
the depositions so taken before us, and which we here- 
with transmit to your lordship, the CTidence produced 
to us in support of the charges of fornication and of 
taking indecent liberties with divers women, is not suffi- 
ciently strong and credible to justify us in recommend- 
ing further proceedings ; that, on the contrary, we are 
of opinion that no conviction founded on the present 
evidence would be warranted by justice ; and, for these 
reasons, we report that there is no primd facie case for 
further proceedings on those charges. 

2d. That there is no sufficient ground for advidng 
that further proceedings should be had on the chaige of 
intoxicati(m. 

3d. That the conduct of the said Frederic Smyth 
Monckton, with regard to the females forming part of 
his fiimily, and especially with respect to Sarah Hug- 
gins, and his ordinary habits of living, were degrading 
to a clergyman of the Church of England, and have 
produced great scandal in the Church ; that such con- 
duct rendered an investigation necessary, and requires 
us to report that there is sufficient ground for proceed- 
ing against the said Frederic Smyth Monckton on 
the chaige of having, by his conduct and demeanour, 
brought great scandal on the Church. 

Given under our hands and seals this 8th day of 
April, in the year of our Lord 1845. 

Stephen Lushington, 
John Sinclair, 
J. Russell, 
William Stone. 



THB ECCLESIASTICAL COURTS. 1^^ 



Consent of the Party accused that Sentence be 
pronounced by the Bishop. 

I, the Hcmooiable and Reverend Frederic Smyth 
Monckton, derk, minister, &c«, do hereby signify my 
consent to the Right Honourable and Right Reverend 
Father in Gtod, Charles James, by Divine penmssion, 
Loud Bishop of London, pronouncing, without further 
proceeding, such sentence not exceeding that which 
might be pronounced in due course of law for and in 
respect of the charges preferred against me by George 
Sheldrick, and reported by the commissioners (to 
whom, under a commission for that purpose, from 
the said lord bishop, bearing date the 6th day of 
March, 1845, the mquiry into the grounds for such 
charges was referred,) as justifying further proceedings 
sgainst me. In witness whereof I have hereunto set 
my hand, the 23d day of April, in the year of our 
Lord 1845. 

Fbbd. S. Monckton. 

Consent qf the Promoter. 

Whereas, under and by virtue of a certain Act of 
Pkuliament, made and passed in the session of Parlia- 
ment held in the third and fourth years of the reign 
of Her present Majesty, intituled ^' An Act for better 
enfbrdng Church Discipline,^' the Right Honourable 
and Right Reverend Father in Ood, Charles James, 
by Divine permission, Lord Bishop of London, on the 
applicafion of George Sheldrick, of &c., issued a com« 
mission under his the said lord bishop's hand and seal. 



122 THE PRACTICE OF 

authorizing and requiring the commissioners therein 
named (one of them being his lordship's vicar-general)^ 
or any three of them, to make inquiry into the grounds 
of certain charges which^ as alleged, he, the said George 
Sheldrick, was prepared to bring against the Honourable 
and Reverend Frederick Smyth Monckton, a clerk in 
holy orders, &c., of having offended against the laws 
ecclesiastical, by having &c. ; and whereas four of the 
commissioners named in the said commission (one of 
the said four being the vicar-general of the said lord 
bishop) accepted the execution of the said commission^ 
and having proceeded in and concluded their inquiry 
into the grounds of the said charges, in the presence of 
the said George Sheldrick and of the said Honourable 
and Reverend Frederic Smyth Monckton, have, by their 
report in writing, made in pursuance of the provisions 
of the said act, reported to the said lord bishop, ^^ that 
after due consideration,^' &c. : and whereas the said 
Honourable and Reverend Frederic Smyth Monckton 
has signified in writing his consent to the said lord 
bishop pronouncings without further proceedings, such 
sentence not exceeding the sentence which might be 
pronounced in due course of law, for and in respect of 
the conduct and demeanour of him the said Honourable 
and Reverend Frederic Smyth Monckton, reported by 
the said commissioners as requiring further investiga- 
tion, and respecting which there was, in their opinion^ 
sufficient ground for proceeding against him the said 
Honourable and Reverend Frederic Smyth Monckton^ 
on the charge of havings by such conduct and demea- 
nour, brought great scandal on the Church : Now I, 
the said George Sheldrick, do, by tiiis writing, signify 
and declare my consent to such sentence being pro- 



THK ECCLESIASTICAL COURTS. 123 

nonnced, without any further proceeding. In witness 
whereof I have hereunto set my hand^ this 16th day of 
May, in the year of our liord 1845. 

Gbobqb Sheldrick. 



Sentence of the Bishop hy Consent . 

In the name of God, amen : whereas we, Charles 
James, by Divine permission. Bishop of London, 
having, on tlie application of George Sheldrick, of 
No. 12, Hertford Cottages, Hertford Road, Kingsland, 
in the county of Middlesex, clerk to the Inspector- 
General of Her Majesty's Customs, and under and by 
Tirtoe of a certain Act of Parliament, made and passed 
in the session of Parliament held in the third and 
fourth years of the reign of Her present Majesty 
Queen "Victoria, entitled '^ An Act for better enforcing 
Church Discipline,'^ issued our commission under our 
hand and seal, authorizing and requiring the conmiis- 
nonera therein named, or any three of them, to make 
inquiry into the grounds of certain charges, which he the 
said GFeoige Sheldrick was prepared to bring against 
the Honourable and Reverend Frederic Smyth Monck- 
ton, a derk in holy orders of the United Church of 
Ejigland and Ireland, and minister or perpetual curate 
of the perpetual curacy or church of Saint Peter de 
Beauvoir Town, in the parish of West Hackney, in the 
said county of Middlesex, and our diocese of London, 
it being allied that he the said Frederic Smyth Monck- 
ton had offended against the laws ecclesiastical in divers 
particuIaTS, by the said George Sheldrick set forth : and 
whereas we have received from four (a majority) of the 
said commissioners, and being all that attended, the 



124 THB PRACTICE OF 

depositions of ^e witnesses taken before them under 
the said commission, and also a report, in writing, of 
their opinion that, after due consideration of the said 
depositions, there was no primd facie case for further 
proceedings on the other charges preferred by the said 
George Sheldrick, and specified in the said commis- 
sion ; but that the conduct of the said Honourable and 
Reverend Frederic Smyth Monckton with regard to the 
females forming part of his family, and especially with 
respect to one Sarah Huggins, and his ordinary habits 
of living, were degrading to a clergyman of the Church 
of England, and had produced great scandal in the 
Church, and rendered an investigation necessary, and 
laid sufficient ground for proceeding against him the 
said Honourable and Reverend Frederic Smyth Monck- 
ton, on the charge of having by such conduct and 
demeanour brought great scandal on the Church : Now 
we, the said Charles James, by Divine permission. 
Bishop of London, having duly considered the pre- 
mises, do, as the bishop of the diocese in which the 
said perpetual curacy or preferment of Saint Peter de 
Beauvoir Town is situate, and under the provisions of 
the said act, and with the consent of the said Honour- 
able and Reverend Frederic Smyth Monckton and of 
the said George Sheldrick, signified to us in writing, 
pronounce, decree, and declare, that, for the conduct 
aforesaid, he the said Honourable and Reverend Frederic 
Smyth Monckton, clerk, ought to be suspended, for the 
space of twelve calendar months, from all discharge of the 
functions of his clerical office, and the execution thereof; 
that is to say, from preaching the word of God, adminis- 
tering the sacraments, or celebrating or performing any 
other duties or offices in the church or perpetual curacy 



THE ECCLESIASTICAL COURTS. 125 

of Saint Peter de Beauvoir Town^ aforesaid ; and we 
do suspend him, the sud Honourable and Reverend Fre- 
deric Smyth Monckton, accordingly, and we do further 
expressly enjoin and command, that there be due pub- 
lication made of this suspension, and do decree that 
such suspension of twelve calendar months shall be 
ledconed or computed from sudi publication. 

C. J. London. 

Summons qf Witness. 

We, the undersigned, three of the commissioners 
duly appointed by and acting under a commission 
from the Right Reverend Father in God, Charles 
James, by Divine permission. Lord Bishop of London, 
bearing date the sixth day of March, in the present year 
1845, and (in virtue of the provisions of a certain Act of 
Parliament, made and passed in the session of Parliament 
held in the third and fourth years of the reign of Her 
present Majesty Queen Victoria, intituled *' An Act for 
better enforcing Church Discipline,'^) duly issued, for 
the purpose of making inquiry, and authorizing us and 
others the commissioners named in the said commis- 
sion to make inquiry, as to the grounds of certain 
charges to be made by George Sheldrick, of No. 12, 
Hertford Cottages, Hertford Road, Eangsland, in the 
county of Middlesex, against the Honourable and Reve- 
raid Frederic Smyth Monckton, a clerk in holy orders 
of the United Church of England and Ireland, and 
minister or perpetual curate of the perpetual curacy or 
church of Saint Peter, otherwise Saint Peter de Beau- 
voir Town, in the parish of West Hackney, in the 
county of Middlesex and diocese of London, that^he 
tfie said Frederic Smyth Monckton has, within two 



126 



THE PRACTIGB OF 

years last past, in the said diocese of London^ offisnded 
against the laws ecclesiastical, do, by these presents 
and in pursuance of the provisions of the said act 
authorizing us in this behalf, require you, John Piitient, 
Richard Wade, Richard Stapley Miles, &c., &c, to 
appear personally before the said ccHnniiasioners, in the 
Common Hall of Doctors' Commons, situate in the 
parish of Saint Benedict, near Paul's Wharf, London, 
on Friday, the 14th day of March, in the present year, 
at the hour of ten in the forenoon, and there to take 
the oath of a witness, and to give evidence touching 
and concerning the charges aforesaid, to be then and 
there inquired into, and further to do and receive as 
unto law and justice shall appertain, under pain of the 
law and contempt thereof. 

Given under our hands and seals, the 13th day of 
March, in the year of our Lord 1845. 

Stephen Lubhinqton (L.S.), 
John Sinclair (L.6.), 
William Stone (L.S.). 

When the commissioners have reported that there 
exists 9Ljmmd facie ground for instituting proceedings, 
or in the first instance, it is competent (as we have 
seen), to the Bishop, to send the case by letters of re- 
quest to the judge of the Arches Court of Canterbury. 

The letters of request in each several case are as fol- 
lows : — 

Letters of Request in the first Instance. 

Henry, by Divine permission, Bishop of Exeter, to 
the Right Honourable Sir Herbert Jenner, Knight, Doc- 
tor of Laws, Official Principal of the Arches Court of 
Canterbury, lawfully constitute, your surrogate or 



THB ECCLESIASTICAL COURTS. 127 

some other competent judge in this behalf; whereas, by a 
certain act of Parliament, passed in the session of Parlia- 
ment holden in the third and fourth years of the reign of 
Her present Majesty Queen Victoria, intituled, '^ An Act 
for the better enforcing Church Didpline '^ it is enacted, 
that in every case of any derk in holy orders, of 
the united Church of England and Ireland, who may 
be chaiged with any offence against the laws ecclesias« 
tical, or oonceming whom there may exist scandal or 
evil report, as having offended against the said laws, it 
shall be lawful for the bishop of the diocese within 
which tlie offence is alleged or reported to have been 
oommitted, on ihe application of any party complain- 
ing thereof, or if he shall think fit of his own mere 
motion, to issue a commission under his hand and seal 
to five persons, of whom one shall be his Vicar-Gene- 
nd, or an archdeacon, or rural dean, within the diocese, 
for the purpose of making inquiry as to the grounds of 
such charge or report. And whereas it is in and by 
the said act also enacted, that it shall be lawful for the 
bishop of any dioeese, within which any such clerk 
shall hold any preferment; or if he hold no preferment, 
then for the bishop of the diocese within which the of- 
fence is alleged to have been committed, in any case, if 
he shall think fit, either in the first instance or af);er the 
commissioners shall have reported that there is suffi- 
cient primd facie ground for instituting proceedings, 
and before the filing of the articles, but not afterwards, 
to send the case by letters of requ^t to the court of 
appeal of the province, to be there heard and deter^ 
mined according to the law and practice of such court. 

And whereas the Reverend Henry Erskine Head, a 
Cl€ark in Holy Orders of the said United Church of 



128 THE PRACTICB OF 

England and Ireland, and Rector of the rectory and 
parish church of Feniton, in the county of Devon and 
diocese of Exeter^ and province of Canterbury, is charged 
with having, within our said diocese of Exeter, 
offended against the laws ecclesiestical by having writ- 
ten and published or caused to be published in a cer- 
tain newspaper called '^The Western Times/* dated 
^^Exeter, Saturday, August twenty-first, one thousand 
eight hundred and forty-one,'^ a letter entitled ''A ^ew 
of the Duplicity of the Present System of Episcopal 
Ministration, in a letter addressed to the parishioners 
of Feniton, Devon, occasioned by the Bishop of Exe- 
ter's circular on Confirmation, by Henry Erskine Head, 
A.M., Rector of Feniton, Devon,'' in which letter it is 
openly affirmed and maintained that the ^^ Catechism," 
the ^^ Order of Baptism," and ^' the Order of Confirma- 
tion," in the Book of Common Prayer, contain errone- 
ous and strange doctrine, and wherein are also openly 
affirmed and maintained other positions in derogation 
and depraving of the said Book of Common Prayer, 
contrary to the statutes and to the constitutions and 
canons ecclesiastical of the realm, and against the peace 
and unity of the Church. Now therefore we, the said 
Bishop of Exeter do hereby request you, the said Right 
Honourable Sir Herbert Jenner, Knight, Doctor of 
Laws, Official Principal of the Arches Court of Canter- 
bury, lawfully constituted, your surrogate, or some 
other competent judge in this behalf, to issue a citation 
or decree under seal of the said court, calling upon the 
said Henry Erskine Head, Clerk, to appear at a certain 
time and place therein to be specified, then and there 
to answer to certain articles, heads, positions, or inter- 
rogatories, touching and concerning his soul's health, 



THE ECCLESIASTICAL COURTS. 129 

and tbe lawfbl correction and refbnnation of his man-* 
ners and excesses^ and more especially for having writ- 
ten and published^ or caused to be published^ the letter 
aforesaid in manner aforesaid^ to be administered to 
him at the volmitary promotion of Ralph Sanders^ of 
the city of Exeter, Gentleman, and to hear and deter- 
mine the said cause according to the law and practice of 
&e said court. 

In witness whereof we have hereunto set our 
hand and seal this ninth day of November, in the 
year of our Lord one thousand eight hundred and 
ioTty-one, and in the eleventh year of our consecra- 
tion. 

H. Exeter, (L.S.) 

Signed, sealed, and delivered in the presence of 

Edward Toller, Jun, 

Letters of Request after prima facte Ground. 

Henry, by Divine permission. Lord Bishop of Worces- 
ter, to the Right Honourable Sir Herbert Jenner 
Fust, Knight, Doctor of Laws, Official Principal of 
the Arches Court of Canterbury, lawfully consti- 
tuted, your Surrogate, or any other competent judge 
in this behalf. 
Whereas the Reverend John Jones, a Clerk in Holy 
Orders, of the United Church of England and Ireland, 
and perpetual Curate, Incumbent, or resident Minister of 
the church or chapel of the township of Cradley in the 
parish of Hales Owen, in the county and diocese of 
Worcester and province of Canterbury, is charged with 
having in our said diocese of Worcester and within two 
years last past offended against the laws ecclesiastical^ 

K 



130 THE PRACTICE OF 

in having committed the crime of adultery, fornication, 
or incontinence. And whereas an application was 
made to us by Absolom Cox Homer, of the township of 
Cradley, in that part of the parish of Hales Owen 
which is in the county of Worcester, Collector of 
Taxes, and Thomas Bloomer, of the same township, 
Nailfactor's Clerk, that we would issue a commission 
under our hand for the purpose of making inquiry as 
to the grounds of such charge. And whereas by virtue 
and in pursuance of an Act of Parliament made and 
passed in the session of Parliament holden in the third and 
fourth years of the reign of Her present Majesty, entitled 
'^An Act for better enforcing Church Discipline," we did, 
on the 14th day of February, 1844, send a notice under 
our hand to the said Reverend John Jones of our intention 
to issue such commission, such notice containing an in- 
timation of the nature of the offence, and the names, 
addition, and residence of the party on whose applica- 
tion such commission was about to issue, and which 
notice was personally served on the said Reverend 
John Jones, on the 16th day of the said month of Fe- 
bruary. And whereas on the 2nd day of March in the 
said year we did issue a commission under our hand 
and seal to the Reverend Henry Arthur Woodgate, 
Clerk, B. D. Rector of Bellroughton in the county and 
diocese of Worcester, and Rural Dean within the said 
diocese; the Reverend Thomas Baker, Clerk, M.A. 
Rector of Hartlebury in the county and diocese of Wor- 
cester and Rural Dean within the same diocese; the 
' Reverend John Peel, Clerk, M.A. Rector of Stone in 
the county and diocese of Worcester j the Reverend Tho- 
mas Legh Claughton, Clerk, M.A. Rector of Kidder- 
minster in the county and diocese of Worcester; and the 



THE ECCLESIASTICAL COURTS. 131 

Revoend John Downall, Clerk, M.A. Curate of Saint 
Geoige's Chapel in this said parish of Kiddenninster 
in the county and diocese of Worcester, for the purpose 
of making inquiry as to the grounds of such charge. 
And whereas on the said second day of March, notice 
of the time and place when and where the meeting of the 
said commission was intended to be held was given in 
writing under the hand of the said Reverend Thomas 
Baker, (one of the commissioners aforesaid,) and on 
the same day was served on the said Reverend John 
Jones. And whereas, on the 11th day of the said 
month of March, the said commissioners met in pur- 
soanoe of and at the time and place mentioned in the said 
notice, and examined witnesses on oath in support of 
the said charge, at which said meeting the said Reve- 
rend John Jones, or his agent, attended and cross-ex- 
amined the said witnesses, and the proceedings being 
closed, and the said commissioners having duly con- 
sidered the depositions taken before them, one of the 
said commissioners did on the same day openly and 
publicly declare that they were unanimously of opinion 
that there was jmrn^/aci^ ground for instituting further 
proceedings. And whereas the said commissioners did 
transmit to us, under their hands and seals, the deposi- 
tions of the witnesses so as aforesaid taken before them, 
and a report that there was primd/acie ground for in- 
stituting further proceedings against the said Reveiisnd 
John Jones, and the said report has been and now is 
filed in the registry of our said diocese. And whereas 
no articles have been filed in the registry of our said 
diocese, and the said Reverend John Jones hath not 
given his consent that we the Bishop aforesaid should 
pronounce sentence without further proceedings, and we 

k2 



132 THE PRACTICE OF 

the Bishop aforesaid^ have thought fit to send the case by 
letters of request to the Court of Appeal of the pro- 
vince. We do therefore request you the Right Honour- 
able Sir Herbert Jenner Fust, Knight, Doctor of Laws, 
Official Principal of the Arches Court of Canterbury, 
lawfully constituted, your surrogate, or some other com- 
petent judge in this behalf, to issue a citation or decree 
under seal of the said court citing the said Reverend 
John Jones to appear at a certain time and place there- 
in to be specified, and answer to certain articles, heads, 
positions, or interrogatories, touching and concerning his 
souFs health, and the lawful correction and reformation 
of his manners and excesses, and more especially for 
having been guilty of the crime of adultery, fornication, 
or incontinence, and for his lewd and profligate life, to 
be administered to him at the voluntary promotion of 
the said A. C. Homer, and T. Bloomer, and finally to 
hear and determine the said cause, according to the law 
and practice of the said court. Dated at Worcester 
this 4th day of November, 1844, and in the fourth year 
of our translation. 

(Signed) H. Worc£ST£r, (L.S.) 

These letters of request are presented to the Official 
Principal or Judge of the Arches Court of Canterbury, 
and having been accepted by him, the proceedings 
assume the character of a suit instituted in that Court, 
independently of any of the provisions of the Act of 
Parliament, and the same forms now apply to each. Prior, 
however, to the office of the judge of the Arches Court 
being promoted, a bond of the following tenor is re- 
quired from the intended promoter. 



THE ECCLESIASTICAL COURTS. 133 



Bond of Promoter. 

Ejiow all men by these presents that we Balph 
Sanders of the city of Exeter, Gentleman, and A« 

B. of are become bomid 

tmto the Right Honourable Sir Herbert Jenner Fust, 
Knight, Doctor of Laws, Official Principal of the 
Arches Comt of Canterbury, lawfully constituted, in the 
sum cxf one hundred pounds of good and lawful money 
of Great Britain, to be paid to the said Right Honour- 
able Sir Herbert Jenner Fust, or his certain attorney, 
execQtors, administrators, or assigns, for which payment 
well and truly to be made, we bind ourselves and each 
of us, for the whole, our heirs, executors, and adminis- 
trators by these presents, sealed with our seals the 
day of in the year of our Lord 1842. 

The condition of this obligation is such that where- 
as there is a cause of the office of the judge promoted 
and brought or intended to be promoted and brought by 
Ralph Sanders of the dty of Exeter, Gentieman, against 
the Reverend Henry Erskine Head, Clerk in Holy Or- 
ders of the United Church of England and Ireland, and 
Rector of the Rectory and Parish Church of Feniton, 
in the county of Devon and diocese of Exeter, and 
province of Canterbury, to answer to certain articles, 
heads, positions, or interrogatories touching and con- 
cerning his soul^s health and the lawful correction and 
reformation of his manners and excesses, and more espe- 
cially for having, witiiin the said diocese of Exeter, offen- 
ded against the laws ecclesiastical, by having written and 
published or caused to be published in a certain news- 



134 THE PRACTICE OF 

paper called the " Western Times/^ dated Exeter, Sa- 
turday, August 21st, 1841, a letter entitled " A View of 
the Duplicity of the present System of Episcopal Minis- 
tration, in a letter addressed to the parishioners of Fen- 
iton, Devon, occasioned by the Bishop of Exeter's cir- 
cular on Confirmation, by Henry Erskine Head, A. M, 
Rector of Feniton, Devon,'* in which letter it is openly 
affirmed and maintained that the Catechism, the order 
of Baptism, and the order of Confirmation, in the Book 
of Common Prayer, contain erroneous and strange doc- 
trines, and wherein are also openly affirmed and main- 
tamed other positions in derogation and depravmg of 
the said Book of Common Prayer, contrary to the sta* 
tutes and to the constitutions and canons ecclesiastical 
of the realm, and against the peace and imity of the 
Church. If, therefore, the said RalphSanders shall £eu1 
in proof of the matters deduced in the said articles, 
heads, positions, or interrogatories, and therefore pay 
all costs and charges as the said judge or his surrogate 
shall tax or allot in the said cause, then this obligation 
to be void and of none effect, or else to remain in fiill 
force and virtue. 

Ralph Sanders, (L.S.) 
A, B, (L.S.) 

Sealed and delivered in the presence. 

C. D. 

After this bond has been given, a decree or process, 
following the tenor of the letters of request, is issued 
under seal of the Arches Court. 



THE ECCLESIASTICAL COURTS. A35 



Decree hy Letters of Request. 

Herbert Jenner, Knight, Doctor of Laws, Official 
Principal of the Arches Court of Canterbury, law- 
fully constituted, to all and singular Clerks and 
Literate Persons, whomsoever and wheresoever, in 
and throughout the whole Province of Canterbury, 
into whose hands these Presents shall come, greeting. 
Whereas we have lately received letters of request from 
the Right Reverend Father in God, Henry, by divine 
permission Bishop of Exeter, of the tenor following, to 
wit: — ^' Henry, by divine permission Bishop of Exeter, to 
die RigfatHonourableSir Herbert Jenner, Knight,Doctor 
of Laws, Official Principal of the Arches Court of Canter* 
bury lawfully constituted, your surrogate, or some other 
competent judge in this behalf: whereas, by a certain 
act of Parliament passed in the session of Parliament 
holden in the third and fourth years of the reign of 
Her present Majesty, Queen Victoria, intituled "An 
Act for better enforcing Church Discipline,^' it is enacted 
that in every case of any clerk in holy orders of the 
United Church of England and Ireland, who may be 
charged with any offence against the laws ecclesiastical, 
or of or concerning whom there may exist scandal or 
evil report as having offended against the ssdd laws, it 
shall be lawful for the bishop of the diocese withui 
which the offence is alleged or reported to have been 
committed, on the application of any party complaining 
thereof, or, if he shall think fit, of his own mere motion, 
to issue a commission, under his hand and seal, to five 
persons, of whom one shall be his vicar-general or an 
archdeacon or rural dean witliin the diocese, for the 



136 THE PRACTICE OF 

purpose of making inquiry as to the grounds of such 
charge or report. And whereas it is in and by the said 
act also enacted that it shall be lawful for the bishop of 
any diocese within which any such clerk shall hold pre- 
ferment ; or, if he hold no preferment, then for the 
bishop of the diocese within which the offence is alleged 
to have been committed, in any case if he shall think fit, 
either in the first instance or after the commissioners 
shall have reported that there is sufficient primd facie 
ground for instituting proceedings, and before the filing 
of the articles, but not afterwards, to send the case by 
fetters of request to the Court of Appeal of the pro- 
vince, to be there heard and determined according to 
the law and practice of such court; and whereas the 
Beverend^Henry Erskine Head, a Clerk in Holy Orders 
of the said United Church of England and Ireland, and 
rector of the rectory and parish church of Feniton, in 
the county of Devon, and diocese of Exeter and pro- 
vince of Canterbury, is charged within our said diocese 
of Exeter with having offended against the laws eccle- 
siastical by having written and published, or caused to be 
published, in a certain newspaper called '^ The Western 
Times,'^ dated Exeter, Saturday, August 21, 1841, a 
letter intituled, "a View of the Duplicity of the present 
System of Episcopal Ministration, in a letter addressed 
to the parishioners of Feniton, Devon, occasioned by 
the Bishop of Exeter's Circular on Confirmation, by 
Henry Erskine Head, A,M., Rector of Feniton, Devon,*' 
in which letter it is openly affirmed and maintained that 
the Catechism, the order of Baptism, and the order of 
Confirmation, in the Book of Common Prayer, contain 
erroneous and strange doctrines ; and wherein are also 
openly affirmed and maintained positions in derogation 



THE ECCLESIASTICAL COURTS. 137 

-and depraying of the said Book of Common Prayer, 
contrarj to the statutes and to the constitutions and 
canons ecclesiastical of the realm, and against the peace 
and unity of the Church ; now, therefore, we, the said 
Bishop of Exeter, do hereby request you, the said 
R%ht Honourable Sir Herbert Jenner, Knight, Doctor 
of Laws, Official Principal of the Arches Court of Can" 
terbury, lawfully constituted, your surrogate, or some 
other competent judge in this behalf, to issue a citation 
or decree, under seal of the said court, calling upon the 
said Henry Erskine Head, Clerk, to appear at a certain 
time and place, therein to be specified, then and there to 
answer to certain articles, heads, positions, or interro- 
gatories touching and concerning his soul's health, and 
the lawful correction and reformation of his manners 
and excesses, and more especially for having written and 
published, or caused to be published, the letter afore- 
said, in manner aforesaid, to be administered to him at 
tiie voluntary promotion of Ralph Sanders, of the city 
of Exeter, Gentieman, and to hear and determine th^ 
said cause according to the law and practice of the said 
court. 

In witness whereof, we have hereunto set our 
hand and seal this 9th day of November, in the year 
of our Lord 1841, and in the eleventh year of our con- 
secration. 

« 

H. EXETBB, (L.S.) , 

Signed, sealed, and delivered in the presence of 

Edward Toller, Jun/' 

And whereas, at the petition of the proctor of the 
said Ralph Sanders, and in aid of justice, we have ac- 
cepted the said letters of request, and decreed to proceed 



138 THE PRACTICE OP 

according to the tenor thereof, and in pursuance thereof 
have decreed the said Keverend Henry Erskine Head, 
Clerk, rector of the rectory and parish church of Feniton, 
in the county of Devon, diocese of Exeter and province 
of Canterbury, to be cited and called into judgment on 
the day, at the time and place, and to the effect and in 
manner and form hereunder written (justice so re- 
quiring). We do, therefore, hereby authorize and em- 
power, and strictly enjoin and command you, jointly 
and severally, peremptorily to cite, or cause to be cited, 
the said Reverend Henry Erskine Head, Clerk, to " 

appear personally, or by his proctor duly constituted, ^ 
before us, our surrogate, or some other competent judge, 
in this behalf, in the Common Hall of Doctors' Commons, 
situate in the parish of Saint Benedict, near Paul's Wharf, ^ 
London, and place of judicature there, on the sixth day 
after he shall have been served with these presents, if it 
be a general session bye-day, or additional court-day of 
the said court, otherwise on the general session, bye-day, ^ 
or additional court-day of the said court then next 
following, at the hour of ten o'clock in the forenoon, 
and there to abide during the sitting of the court, if 
necessary, then and there to answer to certain articles, ' 
heads, positions, or interrogatories touching and 
concerning his soul's health and the lawful correction 
and reformation of his manners and excesses, and more 
especially for having, within the said diocese of Exeter, 
offended against the laws ecclesiastical by having written 
and published, or caused to be published, in a certain 
newspaper called " The Western Times," dated Exeter, 
Saturday, August 21, 1841, a letter entitled A '' View of 
the Duplicity of the present System of Episcopal Mi- 
nistration, in a letter addressed to the parishioners of 



THE BCCLBSIA8TICAL COURTS. 1S9 

Femton^ Deron^ occasioned by the Bishop of Exeter's 
Circular on Confirmationy by Henry Ersldne Head, A.M. 
Rector of Feniton, Devon/' in which letter it is openly 
affirmed and maintained that the Catechism, the order 
of fiaptiam, the order of Confirmation, in the Book of 
Common Prayer, contain erroneous and strange doc- 
trine, and wherein are also openly affirmed and main- 
tained other positions in derogation and depraving of 
die said Book 'of Common Prayer, contrary to the star 
tates and to the constitations and canons ecclesiastical 
of the realm, and against the peace and unity of the 
Church, to be administered to him by virtue of our 
office, at the voluntary promotion of the said Ralph 
Sanders; and further to do and receive, as unto law 
and justice shall appertain, under pain of the law and 
contempt thereof, at the promotion of the said Ralph 
Sanders; and what you shall do, or cause to be done, 
in the premises, you shall duly certify us, our surrogate, 
or some other competent judge in this behalf, togetiier 
with those present. 

Dated at London, the 11th day of November, in the 
year of our Lord, 1842. 

Wm. Townsbnd, (L.S.), Regbtrar. 



Decree hy Letters of Request. 

Herbert Jenner Fust, Ejtiight, Doctor of Laws, OfEdal 
Principal of the Arches Court of Canterbury, law- 
fully constituted, to all and singular Clerks and 
Literate Persons whomsoever and wheresoever, in 
and throughout the whole Province of Canterbury, 

k6 



^^ JTHE PRACTICE OF 

into whose hands these Presents shall come, greet- 
ing. 

Whereas we have received letters of request from the 
Right Reverend Father in God^ , Bishop 

of 9 of the tenor following, to wit, 

^ - by divine permission Bishop of 

I to the Right Honourable Sir Herbert 
Jenner Fust, Knight, Doctor of Laws, Official Princi- 
pal of the Arches Court of Canterbury, lawfully consti* 
tuted, your surrogate, or any other competent judge in 
this behalf. Whereas, by an act <^ Parliament psosed 
in the session of Parliament holden in the third an4 
fourth years of the reign of Her present Majesty Queen 
Victoria, intituled '^ An Act for better enforcing Church 
Discipline,'^ it is enacted that in every case of any 
clerk in holy orders of the United Church of England 
and Ireland who may be chaiged with any offence 
against the laws ecclesiastical, or concerning whom there 
may exist scandal or evU report, as having offended 
agamst the said hws, it shaU be lawful for the bishop of 
the diocese within which die offence is alleged or re- 
ported to have been committed, on the application of 
any party complaining thereof, or, if he shall think fit, 
of his own mere motion, to issue a commission under 
his hand and seal, as therein directed, for the purpose 
of making inquiry as to the grounds of such charge or 
report* And whereas it is by the said act also enacted 
that it shall be lawful for the bishop of any diocese 
within which any such derk shall hold any preferment, 
or if he hold no preferment then for the bishop of the 
diocese within which the offence is alleged to have been 
committed, in any case if he shall think fit, either in 



THE ECCLB8IASTICAL COURTS. 141 

the first instance or after the commissioners have re- 
ported that there is sufficient primd facie gromid for 
instituting proceedings, and before the filing of the 
articles, but not afterwards, to send the case, by 
letters of request, to the Court of Appeal, of 
the ' proTince, to be there heard and determined, 
Bocoiding to the law and practice of such court: And 

^riMfeas A B , of the parish of , in 

the dty and county of , a Clerk in Holy Orders of 
the mi United* Church of England and Ireland, but 
not holding any preferment therein, is charged with 
hanng been convicted at the General Quarter Sessions 
olAe Peace of our Sovereign Lady the Queen, holden 
at fte in and for the dty 

aod comity of , on , the day of 

,in the year of our Lord 18 — y of having, in the 
puish of aforesaid, in the city and county of 

aforesaid, wickedly and unlawfully solicited, 

invited, and endeavoured to persuade one C D— 

to pennit or suffer him the said A '- B 

^Mcedly and feloniously to commit that detestable and 

aboDunable crime called buggery with the said C 

D- , against the order of nature and against the 

peace of our Lady the Queen, her croMrn and dignity: 
And whereas the said offence has been committed 
vitfam our ditfcese of and , to the 

great scasidal of the Chutch: Now, therefore, we the 
wid Bishop of" and do hereby re- 

quest ycm the said Ri^t Hbnoritbie Sir Herbert Jenner 
Fust, Knight, Doctor of Lai^, Official thincipal of the 
Ardies Court of Caifterbury, lawftdly constituted, your 
surrogate, or some other competent Judge, to issue a 
Station or decree, under seal of the said court, calling 

k7 



142 THB PRACTICE OF 

upon him the said A B to appear at a 

certain time and place therein to be specified, then and 
there to answer to certain articles, heads, positions, 
or interrogatories, touching and concerning his soul's 
health and the lawful correction and reformation of his 
manners and excesses, and touchiog and concerning the 
degradation, deprivation, or suspension of him the said 

A B , a Clerk in Holy Orders, from the 

ministry and from the performance of all clerical func- 
tions whatever within our diocese of j 
by reason of his having been convicted as aforesaid, 
and thereby of having caused great scandal to the Church, 
to be administered to him at the voluntary promotion of 

E F , of the city of , Gentieman, 

and to hear and determine the said cause according to the 
law and practice of the said court. In witness whereof nfe 
have hereunto set our hand and seal this day of 
in the year of our Lord 18 , and in the year of 
our consecration/' And whereas, at the petition of the 

proctor of the said E F -, and in aid 

of justice. We have accepted the said letters of request, 
and decreed to proceed according to the tenor thereof, 
and in pursuance thereof have decreed the said Reve- 
rend A B , of the parish of , in the 

city and county of , a Clerk in Holy Orders of the 

said United Church of England and Ireland, but not 
holding any preferment therein, (the said Reverend 
A B being charged with having been con- 
victed, at the General Quarter Sessions of the Peace of 
our Sovereign Lady Queen Victoria, holden at 

, in and for the city and 
county of , on , the day of , in 

the yearDf our Lord 18 , of having, in the parish of 



THB ECCLESIASTICAL COURTS. ^^^ 

aforesaid^ in the city and county of 
aforesaid, wickedly and unlawfully solicited, invited, 

and endeavoured to persuade one C D to 

permit and suffer him the said A— B— 
wickedly and feloniously to commit that detestable 
and abominable crime called buggery with the said 

C D , against the order of nature, and against 

the peace of our Lady the Queen, her crown and dignity ; 
and the said offence having been committed within the 
diocese of and province of Can- 

terbury^ to the great scandal of the Church,) to be 
cited and called into judgment, on the day, at the time 
and pkce, and in manner and form hereunder written 
(justice so requiring) : We do, therefore, hereby autho- 
rize, empower, and strictly enjoin and command you^ 
jointly and severally, peremptorily to cite, or cause to 

be cited, the said Reverend A B , Clerk, to 

appear personally, or by his proctor duly constituted, 
before us, or our surrogate, or some other competent 
judge in this behalf, in the Common Hall, of Doctors' 
Commons, situate in the parish of Saint Benedict, near 
PtoPs Wharf, London, and place of judicature there, 
on the nxUi day after he shall have been served with 
these presents, if it be a general session, bye-day, or 
additional court-day of the said court, otherwise on the 
general session, bye-day, or additional court-day of the 
said court then next ensuing, at the hour of ten o'clock 
in the forenoon, and there to abide during the sitting of 
the court if necessary, then and there to answer to cer- 
tain articles, heads, positions, or interrogatories, touch- 
ing and concerning his soul's health and the lawful 
correction and reformation of his manners and excesses, 
and touching and concerning the degradation, depriva- 

k8 



144 THE PRACTICE OF 

tion, or suspension of him the said Reverend A 

B , Clerk in Holy Orders, from the ministry and 

from the performance of all clerical functions whatever 
within the province of Canterbury, by reason of his 
having been convicted as aforesaid, and thereby of 
having caused great scandal to the Church, to be admi- 
nistered to him by virtue of our office, at the volun- 
tary promotion of the said El F ^ and 

further to do and receive as unto law and justice 
shall appertain, under pain of the law and contempt 

thereof, at the promotion of the said E-^ 

F ; and what you shall do or cause to be 

done in the premises you shall duly certify us, our sur- 
rogate, or some other competent judge in this behalf, 
together with these presents. Dated at London, this 
day of , in the year of our Lord 18 • 

The issue of this decree places the suit on the same 
footing as the older criminal proceedings which the 
Act of Parliament has left untouched, and I will there- 
fore at once advert to the latter, the practice in each 
being henceforward identical. 

Suits against Laymen. 

These sidts are still entirely regulated by the ancient 
forms of the ecclesiastical law. 

Not being directed to the reparation of a private 
injury or loss, like civil cases, they are regarded as a 
proceeding emanating from thp office of the judge, and 
can only be instituted cul publicam vindictam, to punish 
or restrain for the future the commission of any outrage 
on public decency or the established religion of the 
nation. Tliey may be brought either by the mere, or 



THE ECCLESIASTICAL COURTS. 14^ 

at the Tolimtary promotion of die oiEfice of the judge. 
The first, which is a proceeding now altogether disused 
and obsolete^ is instituted on the mere motion of the 
jadge^ who would aj^oint a proctor of his court, by the 
denomination of the necessary promoter of his office, 
for the purpose of carrying out the intended accusation. 
The other, which is the every-day process of modem 
times, may be brought as well by any private individual 
as by a public minister, such as the churchwarden or 
iiDCombent of a parish, against the asserted offender; for 
all persons are considered, in the eye of the law, to 
have a sufficient interest in abating a general nuisance. 

Criminal suits of this description may be stated to be 
applied to the following purposes, viz., to correct gross 
instances of immorality in laics, and offences against 
the sanctity of a parish church or chiurchyard; to 
enforce the sustentation of the fabric of such chiurch 
or churchyard, and the decent performance of divine 
service; or to punish any interference with or contempt 
of the power of the ordinary. 

And they may again receive a further subdivision, 
viz. — 



Nature of Suit. Censure. 

Adultery, fornication. Penance, 
and incontinence {x) . 

Incest by affinity or con- J)\\Xx}. 
8aiiguinity(y). 

(*) Wheatly v. Fowler, Lee (y) Griffiths v. Reed and 
2, p. 376. Harry, Hagg, 1, jp. 195. Bur- 

geas V. Burgeasy Hagg. C. R. 1, 
. p. 384. 

L 



149 



THE PRACTICE OF 



Brawling in a church or 
churchyard — 

By words only (a). 



With smiting (&)• 



Preventing an incum- 
bent from exercising his 
office of chairman at a 
vestry meeting (c). 

Pulling down part of a 
churchy or the fence or 
wall of a churchyard (6f). 

Not repairing a chancel 
or aisle when incumbent 
upon a party by custom^ 
or as being the burial place 
belonging to a manor 
house^ &c.(e). 



Admonition or suspen- 
sion ab ingressu eccksue 
under the general law By 
5 and 6 Edw. 6, c- 4, sus- 
pension ab ingressu eccte- 

SUB* 

By the before-men- 
tioned statute, and 53 Geo. 
3, c. 27, excommunication, 
t. e. Ml imprisonment for 
any term not exceedmg 
six months. 

Admonition. 



Restitution 



Ditto. 



(fl) Palmer v. Roffey, Add. 2, (c) Wilaon y. M'Math, Phffl. 3, 

p. 141 1 WilliamB v. Goodyer, p. 67. 

Add. a, p. 463. (<0 Cox v. Ricraft, Lee 2, 

(6) Lee y. Matthews, Hagg. 3. p. 373. 

p. 169. HoUe Y. Scales, Hagg. (e) Litchford y. StiU, Deleg. 

2, p. 666. 16d9. 



TUB E0CLE8IABTICAL COURTS. 



147 



Against churchwardens 
for n^ecting to repair or 
rebuild any decayed por- 
tion of the 6bnc of the 
church (/). 

Against ditto^ for refus- 
ing or neglecting to provide 
bread and wine^ at the 
chaige of the parish, 
against the time of the 
Holy Communion when 
duly advised and directed 
80 to do. 

Against ditto for refluK 
ing or neglecting to pro- 
ride decent surplices to be 
warn by the minister of 
the parish during the say- 
ing of the public prayers^ 
or the ministration of the 
rites of the churdi. 

Against ditto for refus- 
ing or neglecting to take 
care and provide that the 
church be well and suffi- 
ciently repaired^ and so 
from time to time kept 
and maintained, and con- 
veniently decked and oma- 



Ditto. 



Admonition (under 2Q 
and 22 Canons.) 



Admonition under 58 
Canon. 



Admonition under 85 
Canon. 



(f) Lord Viaooont Maynard p. 501. Miller and Simes v. Pal- 
T. Bnuad and Fhilpot, Fhill. 3, mer and Killby, Curt. p. 541. 

l2 



148 



THB PRACTICE OF 



mented; (or for not repair- 
ing or keeping in proper 
order the parish church) (i) • 

Pulling down a monu- 
ment, levelling graves^ &c. 
without a faculty from the 
ordinary (ib). 

Making a new footpath 
across a churchyard and 
a new entrance thereto (/)• 

Erecting a monument, 
vault, &c. in a church or 
churchyard without a fa- 
culty (m). 



Restitution. 



Ditto. 



Abatement. 



Before these proceedings can be commenced permis- 
sion must be first obtained from the judge, or his sur- 
rogate, on personal application, that the office may be 
promoted. 

This is generally granted as a matter of course, 
the preliminary being only required in order to ascer- 
tain if the matter in question is undoubtedly of ecclesi- 
astical cognizance* But the omission of the observance 
of this rule will be held fatal to the proceedings (n). 

Security is required to be given by the intended pro- 
moter of the office, to secure to the adverse party the ex- 



(i) Miller and Simea v. Pal- 1761. Musgraye v. Russel, De- 

mer and Killby, Curt. 1, p. 541. lee. 1778. Maidman y. Malpas, 

{k) Hutchins ▼. Denziloe and lugg. C. R. 1, p. 209. 
Loveland, Hagg. C. R. 1, p. 172. (n) Carr v. Marsh, Phill R. % 

(/) Walter v. Montague and p. 204. Maidman r. Malpas, as 

Lanprell, Curt 1, p. 253. oefore. 

(m) Hopper V. Davis, Lee 1, 
p. 640. Perison ▼. Gell| Deleg. 



THB BCCLS8IA81TCAL COURTS. 149 

penses of the suit and to indemnify the judge in case 
be shall £ul in substantiating his charge against the 
defendant. 

A fonn of this bond has been already given. It is 
entered into by the party with one surety in the re- 
gistry, and the sum of one hundred pounds is the usual 
amount of the penalty. 

The decree is, or citation may be shewn by the fol* 
lowing forms s—« 

Decree. 

Charles James, by Divine permission. Bishop of Lon- Decree in a 
don, to all and singular clerks and literate persons, ^^ ^ 
whomsoever and wheresoever in and through our 
whole diocese of London, greeting 
Whereas we rightiy and duly proceeding, have at the 
petition of the proctor of A. B. of the parish of 

in the county of Middlesex, decreed 
C. D. of the parish of in the said 

county of Middlesex and our diocese, aforesaid, to be 
dted and called to appear in judgment, on the day, at 
the time and place, to the effect and in manner and 
form hereinafter-mentioned, justice so requiring. We 
do, therefore, hereby authorize and empower and 
strictiy enjoin and command you, jointiy and severally, 
peremptorily to cite or cause to be cited the said C. D. 
to appear personally, or by his proctor duly authorized, 
before the Bight Honourable Stephen Lushington, Doc- 
tor of Laws, our Yicar-General, and Official Principal of 
our Ck>nsbtorial and Episcopal Court of London, law- 
fully constituted, his surrogate, or any other competent 
judge in this behalf, in the Common Hall, Doctors' 



,150 THE PRACTICE OF 

Commons^ situate in the parish of Saint Benedict, 
near PftuFs Wharf, London> and place of judicature 
there, on the sixth day after the service of these pre- 
sents, if it shall be a general session or bye-day, extra 
or additional comi>^y, otherwise on the general session 
or bye-day, extra or additional court*day, then next and 
immediately following, at the hour of the sitting of the 
Court, and there to abide, if occasion require, during 
its continuance, then and there to answer to certain 
articles, heads, positions, or interrogatories, to be ob- 
jected and administered to him by virtue of our office 
of judge, touching and concerning his soul's health, 
and the lawful correction and reformation of his man- 
ners and excesses, and more especially for having been 
guilty of the foul crime of incest, and further to do 
and receive as unto law and justice shall appertain, 
under pain of the law and contempt thereof, at the 
voluntary promotion of the said A. B.; and what you 
shall do or cause to be done, in the premises, you shall 
duly certify our Vicar-General and Official Principal 
aforesaid, our surrogate, or some other competent judge 
in this behalf, togeth^ with these presents. 

Dated at London this day of 

in the year of our Lord in the year 

of our translation. 

(L.S.) 



THE E0CLE8UITICAL COURTS. 151 



Citation. 

Williain^ by Divine pennission^ Bishop of London^ to all Citation 
and singular clerks and literate persons^ whomso- ^f^hwar- 
ever and wheresoever, in and throughout our whole ^®°* ^ repair, 
diocese of London, greeting. 
We do hereby authorize, empower, and strictly 
enjoin and command you, jointly and severally, per- 
emptorily to cite, or cause to be cited, John Homer 
Brand and John Philpot, of the parish of Saint Mary, 
Tfaacksted, otherwise Thaxted, in the county of Essex 
and our diocese of London, the churchwardens for the 
time being of the said parish, to appear personaUy or by 
their proctors or proctor duly constituted before the Right 
Honourable Sir William Scott^ Knight, Doctor of Laws, 
our Vicar-General, and Official Principal of our Con- 
sistorial and Episcopal Court of London, lawfully con- 
stituted, his surrogate, or some other competent judge 
in this behalf, in the Common Hall of Doctors' Com- 
mons situate in the parish of Saint Benedict, near 
Paul's Wharf, London, and place of judicature, there, on 
the 6th day after they shall have been served with this 
citation, if it be a general session, bye-day extra or 
additional court^day, otherwise, on the general session, 
bye-day, or additional court-day next following, at the 
hour of the sitting of the court, and there to abide if 
occasion require during its continuance, then and there 
to answer to certain articles, heads, positions, or inter- 
rogatories, to be administered to them by virtue of the 
office of our judge aforesaid, touching and concerning 
their soul^s health, and the lawful correction and refor- 
mation of their manners and excesses, and more espe- 



152 



THB PRACTICE OF 



dally for refusing or neglecting to rebuild or repur the 
spire of the said parish church of Saint Mary^ Thacksted^ 
otherwise Thaxted aforesaid, and further to do and re- 
ceive as unto law and justice shall appertain, under pain 
of the law and the contempt thereof, at the voluntary 
promotion of the Right Honourable Charles Viscount 
Maynard, Baron of Estaines at the Mount in the 
county of Essex, the patron, or having the advowson of 
the said church, and impropriator of the great tithes of 
the said parish and a proprietor therein; and what you 
shall do or cause to be done in the premises, you shall 
duly certify our Vicar-General and Official Principal 
aforesaid, his surrogate, or some other competent judge 
in this behalf, together with tliese presents. 
Dated, &o. 



Citation 
against 
churchwar- 
den, to pro- 
vide, &c. 



Canon 20. 



Citation. 

George Henry, &c., greeting. 

We do by these presents, authorize, empower, and 
strictly enjoin and command you, jointly and severally, 
peremptorily to cite, or cause to be cited. Job Cooper, 
and Charles Wainwright, respectively, of the parish of 
Shepton Mallett, in the county of Somerset, and our 
diocese of Bath and Wells, the churchwardens of the 
said parish, to appear before us, &c. to answer to certain 
articles, heads, positions, or interrogatories, to be ob- 
jected and administered to them and each of them, by 
virtue of the office of our judge touching and concerning 
their soul's health, and the lawful correction and refor- 
mation of their manners and excesses, and more espe- 
cially for having refused or neglected, on one or more 
occasions, to provide bread and wine at the charge of 



THE JECCLE8IA8TICAL COURTS. 133 

the parish against the time of the Holy Commnnibn Canon 22. 
when duly advised and directed so to do; and also for 
hayiDg, on one or more occasions^ refused or neglected Canon 58. 
to provide a decent surplice to be worn by the minister 
of the said parish^ during the saying of public prayers 
or ministration of the rites of the Church; and further 
to do and receive as unto Ifiw, &c. at the. promotion of 
the Reverend WiUiam Ptovis Trelawny Wickham^ 
Clerk^ rector of the parish and parish church of Shep- 
ton Mallett aforesaid. 
Dated &c« 

The citation or decree having been personally served 
upon the party therein named^ the following certificate 
is then endorsed on it by the mandatory, and confirmed 
by an affidavit sworn before a surrogate of the court. 

Certificate of Service. 

This citation or decree was duly executed, and the Certificate of 
within named C. D, was personally served herewith by ■®'^^®' 
shewing to her those original presents, under seal, and 
by leaving with her a true copy hereof at in 

the parish of Saint Pancras, in the County of Middle- 
sex, this day of in the year 18 

By me, 
E.F. 

Affidavit of Service. 

A. B. against C. D. 
Appeared personally the said E. F. of Doctors' Com- Affidavit of 
mons, in the city of London, officer of the Consistorial 
and Episcopal Court of London, and made oath that 



154 THE PRACTICE OF 

all and singular the contents of the above certificate^ to 
"which he hath set and subscribed his name^ were and 
are true. 

(Signed) E. F. 

On the day of , 18 , the 

said E. F. was duly sworn to the truth of this affidavit 
before me^ 6. H.^ surrogate. 

This decree is then returned into court on the general 
session, bye-day, or additional court-day next following 
the term of service, by the proctor of the promoter, and 
he at the same time exhibits and files a proxy or autho- 
rity from his party, to take all the ustial judicial steps 
against the defendant. 

The proxy from the promoter or plaintiflf is in the 
following form :— 

Promoter's Whereas a citation or decree hath issued under seal 
V^^J' Qf ^Q Arches Court of Canterbury, by letters of request 

from the Worshipful Herbert Jenner, Doctor of Laws, 
Commissary General of the Most Reverend Charles, by 
Divine Providence, Archbishop of Canterbury, Primate 
of all England and Metropolitan in and through the 
whole city and diocese of Canterbury, lawfully consti- 
tuted, against George Clarkson, of Sheemess, in the 
parish of Minster, in the island of Sheppy, county of 
Kent and diocese of Canterbury, to appear before the 
Right Honourable Sir John Nicholl, Knight, Doctor of 
Laws, Official Principal of the said Arches Court of 
Canterbury, lawfully constituted, his surrogate, or some 
other competent judge, at a certain time and place 
therein mentioned, to answer to certain heads, positions, 
or articles to be objected against him, by virtue of the 



THE ECCLESIASTICAL COURTS. 155 

of Ae judges oonoerning the health of his soul 
and die lawfid correction and reformation of his man- 
ners and exoessesy and more especially for having 
created a disturbance in the parish church of the afore- 
-aaid pariah of Minster^ during the time of divine service^ 
^md for quanellingy chiding^ and brawling in the said 
diureh during such time, at the voluntary promotion of 
the Revecend Henry Turminej^ Clerk^ perpetual curate 
of the puish of Minster aforesaid. Now know all men^ 
by these pceaents^ that I^ the said Reverend Henry 
Tannine, Clerk, for divers good causes and considera- 
tions me thereunto espedally moving, have nominated, 
oonstitnted, and appointed, and do hereby expressly 
nominate, constitute, and appoint A. B., of Doctors' 
Commons, London, Notary Public, one of the Procu- 
rators-General of the Arches Court of Canterbury, or, 
in. his absence, any other proctor of the said court, to 
be my true and lawful proctor, for me and in my 
name to appear before the Right Honourable Sir John 
Nicholl, Knigh^ Doctor of Laws, Official Principal of 
the said Arches Court of Canterbury, lawfully consti- 
tuted, his surrogate, or some other competent judge in 
tBis behalf and exhibit this my special proxy, and by 
virtoe thereof for me and in my name to exhibit arti- 
des against the said George Clarkson, and pray and 
]nocare the same to be admitted, and to teke such fur-- 
tber steps in the premises as shall be necessary towards 
psocnzing the said George Clarkson to be canonically 
and according to the exigency of the law corrected and 
punished for the same, and generally to do, perform,, 
and execute all such other acts, matters, and things as 
shall be requisite and necessary to be done for me and 
in my bdialf in and about the premises, and to abide 



156 THE PRACTICE OF 

for me in judgment until definitive sentence or final 
decree shall be given and pronounced therein; and 
I do hereby also authorize and empower my proctor 
aforesaid^ as often as he shall see fit and as occasion 
shall require^ one or more other proctor or proctors^ or 
other fit and competent person or persons, to make, 
name, substitute, and appoint, and the same at pleasure 
to revoke; hereby ratifying, aUowing, and confirming 
all and whatsoever my said proctor or his substitute 
shall lawfully do, or cause to be done, for me and in 
my name in and about the premises. In witness 
whereof I have hereunto set my hand and seal, this 
tenth day of June, in the year of our Lord 18 • 

(Signed) H. Turmine, (L.S.) 

Signed, sealed, and delivered by the said Henry Tur- 
mine, in the presence of us. 

A. B. of &c. &c. 

C. D. of &c. &c. 

The decree or citation having been returned, and the 
proxy fix)m the promoter exhibited, an appearance is 
generally given by the party cited, or by a proctor 
authorized on his behalf, on the same day. If no 
appearance is given, the certificate of the citation is 
continued ; t. e. the time is enlarged to the next court- 
day: for no application can be made that the party 
dted should be pronounced in contempt merely for an 
omission to appear on the exact day of the return (o). 

A proctor having given an appearance on behalf of 
the defendant, either immediately or before a decree of 
contempt has passed, will exhibit a proxy in the follow- 

(o) The proceeding in contompt is explained subsequently. 



THE ECCLESIASTICAL COURTS. 157 

ing form, if his client has determined to deny the truth 
of the accusation contained in the citation, and accord- 
ingly to put the promoter to the proof of his case. 

Whereas, &c« (the heading will correspond with the Ph>xy of 
fonner one-) P^^ "^'"^• 

Now know all men by these presents, that I the said 
Geoige Clarkson, for divers good causes and considera* 
tions me thereunto especially moving, have nominated, 
constituted, and appointed, and do hereby expressly 
nominate, constitute, and appoint A. B., of Doctors' 
Conmions, London, notary public, one of the Procura- 
tors-General, to be my true and lawful proctor, for me 
and in my name to appear before the Right Honourable 
Sir John Nicholl, Knight, Doctor of Laws, Official 
Principal of the Arches Court of Canterbury, lawfully 
constituted, his surrogate, or some other competent 
judge in this behalf, and exhibit this my special proxy, 
and by virtue thereof to give an appearance to the said 
dtation or decree so issued against me as aforesaid, and 
pray articles ; and in case the same shall be given in 
and admitted, then to give a negative issue thereto, 
and, by way of further answer, to give in an allegation 
or aD^ations, in wrildng, responsive thereto, on my 
bdialf, and pray and procure the same to be admitted, 
and take such further steps on my behalf as shall be 
necessary towards procuring me to be dismissed from 
all further observance of justice in the said suit, and 
generally to do, perform, and execute all such other 
acts, matters, and things, &c., &c. {as btfare)* 

The articles having been prayed, must be brought in 
on the same court-day, or that immediately following ; 



158 THB PRACTICB OF 

a copy is delivered to the defendant's proctor, and the 
judge assigns to hear on their admisdon the next 
courtrday ^/>). 

Articles are of the following form : — 

The Office of the Judge promoted by Montagu 
Burgoyne^ Esquire^ against the Reverend 
Edward Drax Free, Doctor in Divinity. 

Articles In the name of God, amen. We John NichoU, 

Sm^*fort Knight, Doctor of Laws, Official Principal of the 
continence. Arches Court of Canterbury, lawfully constituted, to 
you, the Reverend Edward Drax Free, Doctor in Divi- 
nity, Rector of the parish of Sutton, in the county of 
Bedford, in the archdeaconry and commissaryship of 
Bedford, in the diocese of Lincoln and province of 
Canterbury, all and every the heads, positions, articles, 
and interrogatories touching and concerning the lawful 
correction and reformation of your manners and 
excesses, and more especially for incontinence, for 
profane cursing and swearing, indecent conversation, 
drunkenness, and immorality; for your lewd and pro- 
fligate life and conversation ; for neglect of divine ser- 
vice on divers Sundays, using the porch of the church 
of the said parish as a stable, and foddering cattle 
therein, and turning out swine into the church3^ard ; for 
refusing the use of the said church for vestry meetings 
lawfully called; for converting to your own use and 
profit the lead on the roof of the chancel of the said 
church; for refusing, and neglecting, and delaying to 

(p) Dobia V. Masten. PhilL 3, Denzfloe and LoTeland, Hegg. 
p. 175. Schultes ▼. Hodgson, C. R, 1, p. 170, 
Add. 1, p. 321. Hutchina v. 



THE E0CLE8IA8TICAL COURTS. 169 

baptue or christen divers children of your parishioners; 
for refusing and neglecting to btury sundry corpses 9 
and for requiring illegal fees to be paid to you for bap- 
tisms and burials^ do, by virtue of our office, at the 
Yohmtary promotion of Montagu Burgoyne, Esquire, 
article and object as follows : 

We article and object to you, the said Edward Drax Fust 
Free, that by the ecclesiastical laws, canons, and con-* 
stitationa of the Church of England, all clerks and 
mmisters in holy orders are particularly enjoined and 
required to be grave, decent, reverend, and orderly 
m their general deportment and behaviour in every 
respect, and to abstain fiom fornication or inconti- 
nence, profimeness, drunkenness, lewdness, profligacy, 
or any other excess whatever, and from being guilty of 
any indecency themselves, or encouraging the same in 
others ; but that, on the contrary, they are enjoined, at 
an convenient times, to hear or read some of the Holy 
Scriptures, or to occupy themselves with some other 
honest study or exercise, always doing the things which 
shall appertain to honesty, and endeavouring to profit 
the CSiurch of God, bearing in mind that they ought to 
excel all others in purity of life, and to be examples to 
other people, under pain of deprivation of their eccle* 
siastical benefices, suspension from the exercise of theif 
clerical functions, or such other ecclesiastical ptmish- 
ment or censures as the exigency of the case and the 
law thereupon may require and airthorize, according td 
the nature and quality of their offences ; and this was 
and is true^ public, and notorious, and so much you the 
said Edward Drax Free do know, or have heard, and in 
your consdence betieve to be true ; and we article and 
object to joQ of any other time, place, person, or things 



160 THE PRACTICE OF 

and everything in this and the subsequent articles con- 
tained, jointly and severally. 

Second. Also we artide and object to you, the said Edward 

Drax Free, that you were and are a priest or minister 
in holy orders of the Church of England, and that on 
or about £he 6th day of December, in the year of our 
Lord 1808, you were duly and lawfully admitted and 
instituted in and to the said rectory and parish of 
Sutton, in the county of Bedford, and that an entry 
thereof was duly made in the muniment book kept in 
the Episcopal Registry of the Lord Bishop of Lincoln, 
at Buckden Palace, for the diocese of Lincoln, and that 
you were afterwards duly and lawfully inducted into 
the actual and corporal possession of the said rectory^ 
and for and as the lawful rector of the said rectory and 
parish you have ever since been and now are com- 
monly accounted, reputed, and taken to be ; and this 
was and is true, public, and notorious, and we article 
and object to you as before. 

Third. Also we article and object to you, the said Edward 

Drax Free, that in supply of proof of the premises 
mentioned in the next preceding article, and to all 
other intents and purposes in the law whatsoever, the 
promoter of our office doth exhibit and hereto annexe 
and pray to be here read and inserted, and taken as 
part and parcel hereof, a certain paper writing, nuni« 
bered 1, and doth allege and propound the same to be 
and contain a true and authentic copy of the act so 
entered and made in the said muniment book kept in 
the Episcopal Registry of the Lord Bishop of Lincoln 
for the said diocese as aforesaid, on your admission and 
institution in and to the said rectory and parish of 
Sutton, as mentioned in the next preceding article; 



THB ECCLESIASTICAL COURTS. 161 

^ the same has been carefully collated with the 
or^nal entry now appearing in the said muniment 
booky and found to agree therewith, and has been 
signed by Richard Smith, the Deputy Registrar of the 
said diocese ; and that all and singular the contents of 
the said exhibit were and are true, that all things were 
had and done as are therein contained, and that 
^ Edward Drax Free, Clerk, D.D.,'^ Ilierein mentioned, 
and you the Reverend Edward Drax Free, Doctor in 
Divinity, the party accused and complained of in this 
cause, were and are one and the same person, and not 
diyers, and that the rectory of Sutton therein men- 
tioned, to which you were so admitted and instituted, 
and the rectory and parish of Sutton, several times 
mentioned in these articles, was and is one and the 
same place, and not divers ; and this was and is true, 
publicy and notorious, and we article and object to you 
as before. 

Also we article and object to you, the said Edward Fifth. 
Dnz Free, that, in the latter end of the year 1810, you 
engaged Maria Crook, spinster, as a servant, and that 
she thereupon entered into your service, and went to 
reside in the said rectory-house ; that you soon after- 
wards formed a criminal connection with her, and had 
the carnal use and knowledge of her body, and that she 
thereby became pregnant by you ; that you continued 
to cany on such criminal connection during the time 
she remained in your service, which was for about six 
months; tiiat upon her leaving your service she was 
pregnant, and afterwards, to wit, in the month of 
Angost, 1811, was delivered of a bastard child in the 
workhouse of the parish of Saint George, Hanover 
Square, in the county of Middlesex ; and that in the 

M 



162 THE PRACTICE OF 

month of July^ in the said year 1811^ she, the said 
Maria Crook, made an affidavit before Philip Neve, 
Esquire, one of the magistrates of the said county of 
Middlesex, that she had never been married, that she 
was with child, and that you were the father of the 
child or children of which she was then pr^nant, and 
which was likely to be bom out of lawful matrimony, and 
to become chargeable to the parish of Saint George, 
Hanover Square ; that the said bastard child died soon 
after its birth as aforesaid, and that you paid all the 
expenses that had been incurred by the said parish of 
Saint Geoi^, Hanover Square, in the county of Mid- 
dlesex, in consequence of the said delivery of the said 
Maria Crook of the said bastard child ; and this was 
and is true, public, and notorious, and we article and 
object to you as before. 
3ixt},^ Also we article and object to you, the said Edward 

Drax Free, that in part supply of proof of the premises 
mentioned and set forth in the next preceding article, 
and to all other intents and purposes in the law what- 
soever, the promoter of our office doth exhibit and 
hereto annex, and pray to be here read and inserted, 
and taken as part and parcel hereof a certain paper 
writmg, numbered 2, and doth allege and propound the 
same to be and contain a true and authentic copy of 
the affidavit made by the said Maria Crook before 
Philip Neve, Esquire, one of the magistrates of the 
county of Middlesex, as mentioned in the next pre- 
ceding article ; that the same has been carefully col- 
lated with the original affidavit now remaining in the 
custody or possession of the committee of the said 
parish of Saint George, Hanover Square, for the 
management of the poor of the said parish, called the 



THE ECCLESIASTICAL COURTS. 16S 

Pbor*s Board for the said parish^ and found to agree 
therewith; and the same will be produced at tiie hear- 
ing of tliis cause ; that all and singular the contents of 
the md exhibit were and are true, and that ''the Reve- 
rend Edward Drax Free, of Sutton, near Potton, Bed« 
fordahire/' therein mentioned, and you the Reverend 
Edward Drax Free, Doctor in Divinity, the party 
accoaed and complained of in this cause, were and 
are the same person and not divers, and this was and 
is true, public, and notorious, and we article and object 
to you as before. 

Also we artide and object to you, the said Edward Seventh. 
Brax Free, that in the latter end of the year 1812, or 
&e banning of the year 1813, you engaged Catha* 
line Biggins, spinster, as a servant, and she thereupon 
entered into your service, and went to reside in the 
said rectory-house ; that you soon afterwards formed a 
criminal connection with her, and had the carnal use 
and knowledge of her body, and she became pregnant 
by you ; that you continued to carry on such criminal 
connection for several months during the said year 
1813; that the said Catharine Siggins left your said 
sendee, she being at such time pregnant by you, and 
was afterwards, to wit, on the 21st day of November, 
in the said year 1813, at Thundridge, in the parish of 
Hiundridge, in the county of Hertford, delivered of a 
female bastard child ; and that on the 26th day of Feb- 
nary, in the year 1814, she made an affidavit before 
John Baron Dickinson, Esquire, one of the magistrates 
of the said county of Hertford^ that she was so deli- 
vered of a female bastard child on the said 21st day of 
November, and that the same was likely to become 
chargeable to the said parish, and that you did get her 

m2 



164 THE PRACTICE OF 

with child of the said bastard child ; and that an order 
was thereupon made upon you to pay and allow a cer- 
tain sum for the support of such child^ which was 
accordingly paid by you for some time^ and this was 
and is true^ public^ and notorious^ and we article and 
object to you as before. 
Eighth. Also we article and object to you, the said Edward 

Drax Free, that in part supply of proof of the premises 
mentioned and set forth in the next preceding article, 
and to all other intents and purposes in the law what* 
soever, the promoter of our office doth exhibit and 
hereto annex, and pray to be here read and inserted, 
and taken as part and parcel hereof, a certain paper, 
partly printed and partly written, numbered 3, and 
doth allege and propound the same to be and contain 
the original affidavit made by the said Catharine Sig* 
gins, spinster, before the said John Baron Dickinson, 
Esquire, one of the magistrates of the said co\mty of 
Hertford, as mentioned in the next preceding article ; 
that all and singular the contents of the said exhibit 
were and are true ; and that ^^ the Reverend Edward 
Drax Free, of Sutton, in the county of Bedford,^' 
therein mentioned, and you, the Reverend Edward Drax 
Free, Doctor in Divinity, the party accused and com- 
plained of in this cause, were and are the same person, 
and not divers ; and that the signature ^' J. B. Dickin- 
son'^ to the certificate on the said affidavit of the same 
having been taken and signed before him, was and is of 
the proper handwriting and subscription of the said 
John Baron Dickinson, Esquire, one of the magistrates 
of the said county of Hertford, and is so well known 
and believed to be by divers persons of good credit and 
reputation, who have seen him write and subscribe his 



THE SCCLE8IASTICAL COURTS. 165 

name^ and are thereby become well acquainted with his 
manner and character of handwriting and subscription ; 
and this was and is true^ public^ and notorious^ and we 
article and object to you as before. 

Also we article and object to you^ the said Edward Ninth* 
Drax Free, that some time in the beginning of the said 
year 1814, you engaged Margaret Johnston, spinster, 
as a servant, and she thereupon entered into your ser- 
vice, and that you soon afterwards formed a criminal 
connection with her, and had the carnal use and know- 
ledge of her body, and she became pregnant by you ; 
and that in the beginning of the month of August, in 
the said year 1814, she being then far advanced in her 
pr^;nancy, left your said house, and on or about the 
14th day of the said month of August was deUvered of 
a child, begotten by you; that some time afterwards 
she returned to your naid service, and that you there- 
upon renewed your said criminal intercourse and con- 
nection with her, and she again became pregnant by 
you, and that being far advanced in her said pregnancy, 
she agun left your said house, and some time in the 
month of November, 1815, was delivered of another 
child, begotten by you; and that shortly afterwards 
she again returned to your said service, and you again 
renewed your said criminal intercourse and connection 
with her, and she again became pregnant by you, and 
that being far advanced in her said pregnancy, she 
again left your said house, and, on or about the 24th 
day of March, 1817) was delivered of another child, 
b^otten by you, and that shortly afterwards she again 
retomed to your said service, and you again renewed 
your criminal intercourse and connection with her; 
that the said Margaret Johnston was for about five 



166 



THB PRACTICB OF 



Tenth. 



Eleventh. 



years in your said service^ and during such time yon 
carried on such criminal intercourse and connection 
with her as aforesaid ; and this was and is true^ public^ 
and notorious^ and we article and object to you as 
before. 

Also we artide and object to you, the said Edward 
Draz Free, that some time in or about the month o^ 
February, 1818, you engaged Ann Taylor, widow, as a 
servant, and she thereupon entered into your service* 
and went to reside in the said rectory house, and that 
you soon afterwards took indecent liberties with her 
person, and several times urged her and endeavoured 
to form a criminal intercourse and connection with 
her; that she refused to comply with your desires, and 
resisted your importunities, and remained in your ser- 
vice until the latter end of the year 1822, when she 
quitted the same; and this was and is true, public, 
and notorious, and we artide and object to you as 
before. 

Also we article and object to you, the said Edward 
Drax Free, that in the month of December, 1822, you 
engaged Maria Mackenzie, spinster, as a servant, and 
she thereupon entered into your service, and went to 
reside in the said rectory house ; that you soon after- 
wards formed a criminal intercourse and connection 
with her, and had the carnal use and knowledge of her 
body, and she became pregnant by you; and in the 
beginning of the month of May, 1823, she, being then 
about three months gone with child by you, was pre- 
maturely delivered of such child, and that she there- 
upon left your said service ; and this was and is true, 
public, and notorious, and we article and object to you 
as before. 



THB B0CLE8IASTICAL COURTS. 167 

Also we artide and object to yon, the said Edward Twelfth. 
Diax Free^ that in the bq;inning of the month of June^ 
in the said year 1823^ you engaged Elisa Pierson^ spin* 
ster, as a servant, and she tfaereapon entered into your 
service, and went to reside at the said rectory-house} 
and that you attempted to take indecent liberties with 
her person, and niged her and endeavoured to form a 
criminal intercomrse and connexion with her; that she 
refused to comply with your desires, and resisted your 
importunities, and in consequence of such your conduct 
and behaviour towards her she did about a week after 
she so entered your said service quit your said house 
and service; and this was and is true, public, and noto- 
rious, and we article and object to you as before. 

Also we article and object to you, the said Edward ThirteentiL 
Drax Free, that for several years past you have had 
and kept in the said rectory-house various obscene 
and indecent books, containing obscene and indecent 
prints, and particularly an obsence and indecent book, 
called Aristotle's Master-piece; that you have firequentiy 
shown the same to divers persons, and particularly to the 
said Ann Taylor, Maria Mackenzie, and Eliza Pierson, 
during the time they respectively resided in your service 
as aforesaid; that you firequentiy made use of obscene 
and indecent language in your conversation, and ex- 
posed your person indecentiy to the said Ann Taylor, 
Maria Mackenzie, and EUza Pierson; and this was and 
is true, public, and notorious, and we article and object 
to you as before. 

Also we article and object to you, the said Edward Fottrteenth. 
Drax Free, that for several years past you have addicted 
yourself to habitual and excessive drinking of wine and 
spirituous liquors, and particularly rum, so as to be fire- 



168 



TUE PRACTICJiOF 



quently much intoxicated; and that you have also 
frequently been guilty of the vice of profane cursing 
and swearing; that you have at various times sworn at 
your servants and labourers^ and made use of much 
profane language and many oaths; and this was and it 
is true^ public^ and notorious, and we article and 
object to you as before. 

Fifteenth. Also we article and object to you, the said Edward 

Drax Free, that on a Friday in the month of February, 
1823, about four o'clock in the afternoon, you were 
intoxicated, and being in the churchyard of the said 
parish, and a lamb belonging to you having been found 
dead, you made use of many profane oaths, and swore 
at James Steers, a man who was then employed by yoa 
as a gardener and to look after your farming concerns, 
tod called him a damned stupid fool and a damned 
thief, which expression you repeated immediately after- 
wards, on the same day in your own yard, adjoining 
the said rectory-hduse; and this was and is true, pubhc, 
and notorious, and we article and object to you as 
before. 

Sixteenth. Also we article and object to you, the said Edward 

Drax Free, that on a day at or about Christmas, in the 
year 1823, you were much intoxicated, and that on 
your then coming out of the said rectory-house, you fell 
down, and on getting up again you went into the 
church-yard of the said parish, and that both in your 
said house and in the said churchyard you made use of 
much profane language, and many oaths; and (his was 
and is true, public, and notorious, and we aktide and 
object to you as before. 

Seventeenth. Also we article and object to you, the said Edward 
Drax Free> that the duty which has always been accus- 



THE ECCLESIASTICAL COURTS. I6d 

tomed to be done at the said church on a Sunday has 
been the morning service and a sermon, and that on 
Sunday the 5th day of December, 1819, you, without 
just cause or impediment, wholly omitted to perform 
such service, and we further article and object to you, 
that without just cause or impediment you wholly 
omitted to perform divine service in die said church 
on Sunday the 25 th day of November, 1820, and also 
on every Sunday subsequent thereto, until Sunday the 
24ih day of December following, and that you also 
omitted to perform any such service on Sunday the 
28th day of January, 1821, and that on the aforesaid 
Sundays respectively no divine service whatever was 
performed in the said church; and this was and is true, 
public, and notorious, and we article and object to you 
as before. 

Also we article and object to you, the said Edward E^hteenth. 
Drax Free, that for many years past you have been in 
the habit of turning swine, horses, aind cows into the 
churchyard of the said parish, and of using the church- 
porch as a stable, and foddering cattle therein, and that 
a considerable quantity of dung has in consequence 
thereof jGrequently been collected and remained for a 
long time in sudi church-porch; that considerable 
damage has been done to the soil, and many of the 
grave-stones in the said churchyard have been broken 
by the said horses, and the ground therein turned up 
by the swine, and sometimes perforated as low as the 
coffins therein; that the Venerable tiie Archdeacon of 
Bedford, at his parochial visitation held for the said 
archdeaconry, did, on or about the 18th day of June, 
in the said year 1^23, admonish you not to turn 
STOie into the said churchyard in future, but that not- 



170 



THE PRACTICE OF 



withstanding such admonition, you have continued to 
turn swine therein as you had done before; and this 
was and is true, publici and notorious, and we article 
and object to you as before. 

Nineteenth. Also we artide and object to you, the said Edward 
Drax Free, that there are two keys to the door of the 
said church, one whereof is kept by you as rector, and 
the other by the churchwarden of the said parish; that 
there is an outer door to the chancel of the said church, 
to which there is only one key, which is in your posses- 
sion, and that by means of such chancel door you can 
obtain access to the said church; that vestry meetings 
for the said parish have been customarily held in the 
said parish church, and that at Easter in the year 1821, 
and at Easter in the year 1823, and also at Easter in the 
present year 1824, notice was duly given in the said 
church of vestry meetings to be held for the sud parish, 
and that a short time previous to the times of each of 
such vestry meetings so to be held, you obtained access 
to the said church by means of the said chancel door, 
and bolted the said church door in tiiie inside thereof, 
and thereby prevented the churchwardens and parishio- 
ners from meeting in vestry in the said church, and 
refused to permit the said church to be opened for the 
said purpose; and that you have also, at other times, 
prevented the said diurchwardens and parishioners 
from entering the said church and holding vestries 
therein in pursuance of due notice previously given for 
that purpose; and this was and is true, public^ and 
notorious, and we article and object to you as before* 

Twenttech. Also we article and object to you^ the said Edward 
Drax Free, that, in the year 1820, the roof of the chan- 
cel of the said church being covered with lead, you. 



THB ECnLESXASTICAL COURTS ]7l 

without any lawful authority in that behalf^ caused the 
said roof to be stripped of the lead, and slates to be 
subatitated thereon in its stead; and that you there- 
upon sold and disjposed of such lead, the money arising 
finom which (after paying for such slating) you con- 
certed to your own use, and that the same amounted to 
a considerable sum, over and above the expense of such 
slates; and this was and is true, pubUc, and notorious, 
and we aitide and object to you as before* 

Also we artide and object to you, the said Edward Twenw- 
Drax Free, that on Sunday the 2l8t day of January, "©cona- 
1821, the child of Thomas Smith and Ann Smith his 
wife, parishioners and inhabitants of the said parish, 
was brought to the said church to be baptized or 
ehriatened; that you then refused to baptize or christen 
audi child until a sum of money was paid to you for 
the same; that the said Thomas Smith thereupon« paid 
Uie sum then so demanded by you; but that having 
received such sum, you declared that the same was for 
the baptism of a former child of the said Thomas 
Smith and Ann Smith, which had been performed by 
you; and you then demanded a further sum of money 
for the baptism of the said child then brought to you 
as aforesaid; that the said Thomas Smith and Ann 
Smith refusing to pay such further demand, you refused 
to baptize the said child, and such child was not bap- 
tbed; and we further article and object to you, that in 
the month of April or May, 1823, the corpse of a child 
of the said Thomas Smith and of his said wife, was 
brought to the churchyard of the said parish for burial 
or interment, due notice thereof having been previously 
given to you; that you then refused to perform the funeral 
lervice, and to bury such corpse, until the simi of four 



172 THE PRACTICE OP 

shillings^ as fee for such burial, was paid to you; and 
you then made use of many quarrelsome words; that 
in consequence of such your refusal the said corpse was 
kept a considerable time in the said church3^rd; that 
you at last buried the same, and compelled the said 
Thomas Smith to pay you the fee of four shillings; and 
this was and is true, public, and notorious, and we 
article and object to you as before. 
Twenty-third. Also we article and object to you, the said Edward 
Drax Free, that on a Sunday, in the month of August, 
1823, a child of James Randall, of the said parish of 
Sutton, and of Amy Randall, his wife, was brought to 
the said church to be baptized or christened ; that you 
at first refused to baptize such child, imtil a sum of 
motley, as a fee, was paid to you for the same ; that the 
said child was detained some time at the said churchy 
but that you afiterwards baptized such child, without a 
sum of money being paid for the same, but then ex- 
pressed yourself angrily towards the said Amy Randall, 
^d desired her never to come to the said church again ; 
md this was and is true, public, and notorious, and we 
article and object to you as before. 
Twenty Also we article and object to you, the said Edward 

fourth. j)yj^ Yree, that a chUd of John Saville and of 

Saville, his wife, parishioners and inhabitants of the 
said parish, died in or about Michaelmas, 1820 ; tha^ 
on the following Monday application was made to you 
to bury the corpse of the said child on the following 
day ; that you then declared you were going out, and 
would not bury the said corpse until the Wednesday 
following, and made use of profane language ; that on 
the following day, being Tuesday, the corpse of the 
said child bebg extremely offensive and unfit to be 



THE ECCLESIASTICAL COURTS. X73 

kept any longer without burial^ and a grave for the 
same being prepared and then ready, application was 
again made to you, at die said rectory-house, to bury 
the said corpse on tiie same day, being Tuesday, when 
you again refused ; and that the same was not buried 
until ihe next day, being Wednesday, in the month of 
October, in the said year 1820 ; and this was and is 
true, public, and notorious, and we article and object to 
you as before. 

Also we article and object to you, the said Edward Twenty-iifUL. 
Drax Free, that in the month of October, in the year 
1822^ the corpse of a child of Thomas Gurry, and of 
Gurry, his wife, parishioners and inhabitants of 
the said parish, was brought to the churchyard of the 
said parish for burial or interment; and that on the 
31st day of December, 1822, or 1st day of January, 
1823, the corpse of a child of William Giddins and 
Giddins, his wife, also parishioners and inha- 
bitants of the said parish, was also brought to the said 
churchyard for burial or interment; and that in the 
month of July, in the said year 1823, the corpse of a 
child of Thomas Smith and Ann Smith, his wife, also 
parishioners and inhabitants of the said parish, was also 
brought to the said churchyard for burial or interment, 
due notice thereof haying been previously given to you 
on each of such occasions ; that you refused to perform 
the funeral service, and to bury such corpses respectively, 
until the sum of four shillings for each of such burials or 
interments was paid to you, as a fee, for the same ; that 
such sum of money was paid to you accordingly, pre- 
vious to your performing the funeral service and bury- 
bg such corpses ; and this was and is true, public, and 
notorious, and we article and object to you as before. 



174 THE PRACTICE OF 

Twenty- Also we article and object to you, the said Edward 

Drax Free, that by such your excesses, and the gross 
impropriety and immorality of your conduct, in the 
several preceding articles set forth, you have given 
great offence to the parishioners^ and inhabitants of 
the said parish ; and that by reason thereof they have 
declined generally to attend, and do not attend divine 
service in the said parish church ; and that for a consi- 
derable time past the congregation at such service has 
consisted commonly of one or two poor persons and of 
a few poor children only; and this was and is true, 
pubUc, and notorious, and we article and object to you 
as before. 
Twen^- AigQ ^g article and object to you, the said Edward 

Drax Free, that at the Michaelmas visitation for the 
year 1823, held on the 24th day of October, 1823, by 
the said Archdeacon of Bedford, the churchwarden, 
overseer, constable, and some of the parishioners of the 
said parish of Sutton made two several presentments to 
the said Archdeacon or to his official, wherein they 
presented several of your said excesses and improprie- 
ties, and immorality of conduct hereinbefore set fortb 
and that in supply of proof of the premises, the pro- 
moter of our office doth exhibit and hereto annex two 
paper writings, numbered 4 and 5, and doth allege and 
propound the same to be and contain true and authen- 
tic copies of the said two original presentments, which 
, are now remaining in the Registry of the Archdea- 
conry Court of Bedford; that the same have been 
carefully collated with the said two original presents 
ments, and agree therewith, and have been signed by 
Charles Bailey, the Deputy Registrar of the said arch- 
deaconry ; and that ^ the Reverend Doctor Free '^ and 



THE ECCLESIASTICAL COURTS. 175 

^ Doctor Free/' mentioned in tiie said exhibit No. 4, 
as rector of the said parish of Sutton^ and ^^ Doctor 
Free/' also mentioned in tiie said exhibit No. 5, as 
rector of the said parish of Sutton, and yon the said 
Edward Drax Free, Doctor in Divinity, the party 
complained of and accused in this cause, were and are 
the same person and not divers ; and this was and is 
true, public, and notorious, and we article and object to 
you as before. 

Also we article and object to you, the said Edward Twenty- 
Drax Free, tiiat for joxir aforesaid fornication or incon- 
tinence, profane cursing and swearing, indecent con- 
yersation, drunkenness, and immorality, lewd and 
profligate life and conversation, neglect of duty, using 
the porch of the said church as a stable, and foddering 
cattle tiierein, and turning out swine into the church- 
yard ; for refusing the use of the said church for vestry 
meetings lawfully called; for converting to your own 
use and profit the lead on the roof of the chancel of the 
said church ; for refusing, and neglecting, and delaying 
to baptize or christen divers children of your parish- 
ioners; for refusing and neglecting to bury sundry 
corpses, and for requiring illegal fees to be paid to 
you for baptisms and burials, and other crimes and 
excesses, jtm ought to be canonically punished and 
corrected, and we article and object to you as before. 

Also we article and object to you, the said Edward Twenty- 
Drax Free, that you are of the parish of Sutton, in the °"^ * 
archdeaconry and commissaryship of Bedford, in the 
diocese of Lincoln, and province of Canterbury, and 
therefore and by reason of the premises and of the 
letters of request firom the Worshipful Richard Smith, 
Master of Arts, Commissary of the Honourable and 



176 THE PRACTICE OF 

Right Reverend Father in God, George, by Divine 
permission. Lord Bishop of lincohi, in and through- 
out the whole archdeaconry of Bedford, in the diocese 
of Lincohi, lawfully constituted, presented to, and 
accepted by us in this cause, were and are subject 
to the jurisdiction of this Court, and we article and 
object to you as before. 

Thirtieth. Also we article and object to you, the said Edward 

Drax Free, that the said Montagu Burgoyne, the party 
agent in this cause, hath rightly and duly complained 
to us the Judge aforesaid, and to this Court, and we 
article and object to you as before. 

Thirty-fiwt. Also we article and object to you, the said Edward 
Drax Free, that all and singular the premises were and 
are true, public, and notorious, and thereof there was and 
is a public voice, fame, and report, of which legal proof 
being made to us the judge aforesaid, and to this 
Court, we will that you the said Edward Drax Free 
be duly and canonically punished and corrected accord- 
ing to the exigency of the law, and also be condemned 
in the costs of this suit, made and to be made by and 
on the part and behalf of the said Montagu Bui^oyne, 
Esquire, the party agent and complainant, and com- 
pelled to the due payment thereof by our definitive 
sentence or final decree to be read and promulged, or 
made and interposed in this cause ; and further that it 
shall be done and decreed in the premises as shall be 
lawful and right in this behalf, the benefit of the law 
being always preserved. 



THE PRACTICE OF l77 



Tie Office of the Judge promoted by Homer and 

Bloomer against Jones. 

In the name of God, amen. We Herbert Jenner Articles 
Fusty Knight, Doctor of Laws, Official Principal of the ^e^man 
Arcbcs Court of Canterbury, lawfully constituted, to after report 
you the Reyerend John Jones, a Clerk in Holy Orders 
of the United Church of England and Ireknd, and 
Perpetual Curate, Incumbent, or Resident Minister of 
the church or chapel of the township of Cradley, in 
the parish of Hales Owen, in the coimty and diocese of 
Woioester, and province of Canterbury, all and every 
the articles, heads, positions, or interrogatories, touch- 
ing and concerning your soul's health and the lawful 
connection and reformation of your manners and ex- 
cesses, and more especially for having been guilty of 
the crime of adultery, fornication, or incontinence, and 
for your lewd and profligate life, do by virtue of our 
office, at the voluntary promotion of Absalom Cox 
Homer and Thomas Blooms, the church or chapel- 
vardens of the church or chapel of Cradley aforesaid, 
article and object as foUows, to wit : 

We article and object to you, the said John Jones, Pint, 
that by the ecclesiastical laws, canons, and constitu- 
tions of the Church of England, all clerks and ministers 
in holy orders are particularly enjoined and required to 
he grave, decent, reverend, and orderly in their general 
deportment and behaviour in every respect, and to ab- 
stam from fornication or incontinence, lewdness, profli- 
gacy, or any other excess whatever, and from being 
guilty of any indecency themselves, or encouraging the 
same in others; but that, on the contrary, they are 

N 



17b the practice of 

enjoined at all convenient times to hear or read some 
of the Holy Scriptures^ or to occupy themselves with 
some other honest study or exercise^ always doing the 
thing which shall appertain to honesty^ and endeavour- 
ing to profit the Church of 6od^ bearing in mind that 
they ought to excel all others in purity of life, and to 
be examples to other people, under pain of deprivation 
or other ecclesiastical punishment or censure, as the 
exigency of the case and the law thereupon may 
require and authorize, according to the nature and 
quality of their offences ; and this was and is true, 
public, and notorious, and we article and object every- 
thing in this and the subsequent articles contained 
jointly and severally. 

Second. Also we article and object to you, the said John 

Jones, that you were and are a priest or minister in 
holy orders, of the United Church of England and 
Ireland, and were, in or about the month of February, 
in the year of our Lord one thousand eight hundred 
and twenty-two, duly instituted or licensed in and to 
the perpetual curacy of the church or chapel of the 
township of Cradley, in the parish of Hales Owen, 
in the county and diocese of Worcester, and for and 
as the lawful perpetual curate of the said perpetual 
curacy you have ever since been and now are com- 
monly accounted, reputed, and taken to be ; and this 
was and is true, public, and notorious, and we article 
and object as before. 

Third. Also we article and object to you, the said John 

Jones, that in or about the month of December, one 
thousand eight hundred and forty-two, you, being a 
married man, formed and carried on an adulterous con- 
nection and intercourse with a prostitute named Mary 



THB ECCLESIASTICAL COURTS. l79 

Ann James^ at such time residing at No. 1^ Pershore 
Street, in the town of Birmingham, in the county of 
Warwick and diocese of Worcester; that on several 
occasions in the said month of December, and down 
to the month of May, in the year 1843, you, passing 
by the assxmied name of George AUen, visited the said 
Mary Ann James at her lodgings, situate in Pershore 
Street aforesaid, where you remained for several hours 
at a time alone with her, and had the carnal use and 
kno^edge of her body; and this was and is true, 
public^ and notorious, and we article and object as 
before. 

Also we article and object to you, the said John Fourth. 
Jones, that in or about the month of July, in the said 
year one thousand eight hundred and forty-three, you, 
still passing by the assumed name of Allen, frequently 
visited the said Mary Ann James at her then lodgings, 
situate in Back Street, in the said town of Birming- 
ham, and on all or most of such occasions you re- 
mained for several hours at a time alone with and had 
the carnal use and knowledge of the body of the said 
Mary Ann James ; also we article and object to you, 
the said John Jones, that in the latter end of the said 
month of July, and in the month of August, in the 
same year, you frequently visited the said Mary Ann 
James at her then lodgings, situate in Bath Passage, in 
(he said town of Birmingham, and remained alone with 
her for several hours at a time, on all or most of which 
occasions you had the carnal use and knowledge of the 
body of her the said Mary Ann James ; and this was 
and is true, public, and notorious, and we article and 
object as before. 

n2 



180 THB PRACTICE OP 

Fifth. Also we article and object to yon, the said John 

Jones^ that in or about the month of July or August, 
in the said year one thousand eight hundred and forty- 
three^ you and the said Mary Ann James proceeded 
together^ by a stage-coach, to the Golden lion Inn, in 
the town of Stratford-upon-Avon, in tiie said county of 
Warwick, where you and the said Mary Ann James 
passed the night in one and the same bed, and had the 
carnal use and knowledge of each other's bodies ; and 
this was and is true, public, and notorious, and we 
article and object as before. 

Serenth. Also we article and object to you, the said John 

Jones, that during the time you carried on the afore- 
said adulterous connection with the said Mary Ann 
James, you frequentiy wrote, addressed, and sent to 
her letters which you signed with your aforesaid 
assimied name, *^ George Allen,^^ and that you also 
gave to her a card with the names and addition, ^' Mr. 
George Allen, Post Office, Birmingham, till called for,'' 
written thereon, and desired the said Mary Ann James 
to address her letters to you in that manner ; and this 
was and is true, public, and notorious, and we article 
and object as before. 

Eighth. Also we article and object to you, the said John 

Jones, that in part supply of proof of the premises in 
the next preceding article mentioned, and to all other 
intents and purposes in tiie law whatsoeyer^ we do 
exhibit and hereto annex and will to have here read 
and inserted and taken as part and parcel hereof, six 
certain paper writings, marked respectively D, E, F, 
F (a), G, and G (a), and a card marked H, and we 
article and object the said exhibits, marked D, £, F, 



TUB ECCLESIASTICAL COtJRTS. l81 

and O^ to be and contain four ori^nal letters^ written> 
addressed^ and sent, on or about the times they respec- 
tively bear date^ by you, the said John Jones, to the 
aaid Mary Ann James, by whom they were duly re- 
eeired, and the said exhibit F (a) to be a transcript of 
certain passages from Shakspeare's Works, presented 
by you on or about the thirtieth day of Noyember, one 
thousand eight hundred and forty-three, to the said 
Mary Ann James, and the said exhibit marked G (a) to 
be the envelope or cover to the said exhibit marked O, 
and the said exhibit marked H to be the card men- 
tioned in the next preceding article; and we further 
article and object, that all and singular the contents of 
the said exhibits D, E, F, F(a), O, and O (a), (with 
the exception of the certificates and the signatures of 
the commissioners, hereinafter mentioned, respectively 
written thereon), and the subscription to those marked 
D, E, F, and G, and the name and words ^'Mn 
Geoi^ Allen, Post Office, Birmingham, till called for,'' 
on the said exhibit H, were and are of the handwriting 
of yon, the said John Jones, the party accused and 
complained of in this cause, and were and are so well 
known or believed to be by divers persons of good 
credit who are well acquainted therewith ; and this was 
and is true, public, and notorious, and we article and 
object as before. 

Also we article and object to you, the said John Ninth. 
Jones, that the person who so, as aforesaid, visited the 
said Mary Ann James at a house in Pershore Street, 
Binningham, as objected to in the third article, and 
who also visited the said Mary Ann James, at her 
lodgings respectively situate in Back Street, and Bath 
Passage in the said town of Birmingham, as objected to 



1B2 THE PRACTICE OF 

in the fourth article^ and who^ accompanied by the said 
Mary Ann James^ proceeded by the stage coach to the 
Golden Lion Inn, in the town of Stratford upon Avon, 
as objected to in the fifth article; and you the said 
John Jones, the perpetual Curate, Incumbent, or Resi- 
dent Minister of the church or chapel of the township 
of Cradley aforesaid, and the party accused and com- 
plained of in this cause, were and are one and the same 
person and not divers, and this was and is true, public, 
and notorious, and we article and object as before. 

Tenth. Also we article and object to you, the said John 

Jones, that for your aforesaid fornication, or incon- 
tinence, and lewd and profligate life, you ought to be 
canonically corrected and punished, and we article and 
object as before. 

Eleventh, Also we article and object to you, the said John 

Jones, that on or about the fifteenth day of January, 
one thousand eight hundred and forty-four, an appli- 
cation was made to the Right Reverend Father in God, 
Henry, by Divine permission. Lord Bishop of Worces- 
ter, by the said Absalom Cox Homer and Thomas 
Bloomer, chaiging that you, the said John Jones, being 
a Priest or Minister, in Holy Orders, of the United 
Church of England and Ireland, had within the said 
diocese of Worcester, and within two years then last 
past, offended against the laws ecclesiastical, in havbg 
been guilty of fornication and adultery, and praying that 
the said Lord Bishop would issue a commission under his 
hand, for the purpose of making inquiry as to the 
ground of such charge; and we further article and 
object, that on the fourteenth day of February, in the 
said year 1844, the said Lord Bishop did, by virtue of 
an Act of Parliament made and passed in the session of 



THB ECCLESIASTICAL COURTS. 163 

P^orliament, holden in the third and fourth years of the 
reign of Her present Majesty, entitled ** An Act for 
better enforcing Church Discipline/^ send a notice under 
his hand and seal to you, the said John Jones, of his 
intention to issue such commission, and that such 
notice contained an intimation of the nature of the 
offence, and the names, additions, and residences of the 
said Absalom Cox Homer and Thomas Bloomer, (being 
the persons on whose application the said commission 
was about to issue,) and that the said notice was per-* 
sonally served on you, on the sixteenth day of the said 
month of February. And we further article and object 
to you, the said John Jones, that on the second day of 
March, 1844, the said Lord Bishop did idsue a commis- 
sion under his hand and seal, directed to the Reverend 
Henry Arthur Woodgate, Clerk, B.D., Hector of Bel- 
broughton, in the county and diocese of Worcester, 
and Rural Dean within the said diocese; the Reverend 
Thomas Baker, Clerk, M.A., Rector of Hartelbury, in 
the same county and diocese, and Rural Dean within 
the said diocese; the Reverend John Peel, Clerk, M.A., 
Rector of Stone, in the same county and diocese; the 
Reverend Thomas Lee Claughton, Clerk, M.A., Vicar 
of Kidderminster, in the same county and diocese; and 
ftie Reverend John Downall, Clerk, M.A., Curate of 
Saint Geoige's Chapel, in the sud parish of Kidder- 
minster, and in the diocese of Worcester, for the 
purpose of making inquiry as to the grounds of such 
charge so as aforesaid made against you, the said John 
Jones; and we do further article and object to you the 
said John Jones, that on the said second day of March, 
notice of the time when and place where the meeting 
of the said commisioners was intended to be held^ 



184 THE PBACTICE OP 

issaed in writings tinder the band of the said Reverend 
Thomas Baker^ one of the commissioners aforesaid, 
and on the same day was served on you, the said John 
Jones; and we do further article and object that on the 
eleventh day of the said month of March, the said 
commissioners met in pursuance of and at the time 
and place mentioned in the said notice, and examined 
witnesses on oath in support of the said charge, such 
witnesses being cross-examined by you the said John 
Jones or your agent; and the proceedings being closed, 
and the said commissioners having duly considered the 
depositions taken before them, one of the said commis- 
sioners did on the same day openly and publicly 
declare that they were unanimously of opinion, that 
there was primd fade ground for instituting further 
proceedings; and we do further article and object that 
said commissioners transmitted to the said Lord 
Bishop, under their hands and seals, the depositions of 
the witnesses, so as aforesaid taken before them, and a 
report that there was primd fade ground for instituting 
further proceedings against you, the said John Jones, 
and that the said report has been and now is filed in 
the registry of the said diocese of Worcester; and we 
do further article and object, that you the said John 
Jones, have not consented that the said Lord Bishop 
shoxdd give sentence without further proceedings being 
had, and no articles have been filed in the said registry; 
and that the said Lord Bishop hath sent the case by 
letters of request under his hand and seal, to us the 
judge aforesaid, which said letters of request have been 
duly presented and accepted in this cause, by reason 
whereof, and of the premises, you were and are subject 
to the jurisdiction of this court; and this was and is 



TH£ ECCLESIASTICAL COURTS. ' 185 

true, pabli(^ and notorious^ and we article and object 
as before. 

Also we article and object to you the said John Twelfth. 
Jonesi, that it hath been and is on the part and behalf 
of the said Absalom Cox Homer and Thomas Bloomer^ 
the parties agent and complainant in this cause, rightly 
and duly complained to us, the Official Principal afore- 
said and to this Court, and we article and object as 
before. 

Also we article and object to you, the said John l^urteenth. 
Jones, that all and singular the premises were and are 
true, public^ and notorious, and thereof there was and is 
a public voice, fiune, and report, of which legal proof 
being given^ we will that right and justice be effectually 
done and administered in the premises; and that you 
tiie said John Jones, for your exigency, be canonically 
and duly corrected and punished, according to the 
exigency of the law, and also be condemned in the 
costs made and to be made on the part and behalf of 
the said Absalom Cox Homer and Thomas Bloomer, 
and compelled to the due payment thereof by us, and 
our definitive sentence to be read, signed, promulged, 
and given in this cause. 

The Office of the Judge promoted by Sanders 

against Head. 

In the name of God, amen. We Herbert Jenner Aitides 

Fust, (heretofore, to wit at the time of the presentation J^^man 

and acceptation of the letters of request and issuing and for affinning 

service of the decree in this cause, Herbert Jenner,) Serogation 

Knight, Doctor of Laws, Official Principal of the ^^ com^n 

Aiches Court of Canterbury, lawfully constituted, do by Prayer. 



186 THE PRACTICE OF 

virtue of our office^ at the voluntary promotion of Ralph 
Sanders of the city of Exeter, Gentleman, object, give, 
administer to you the Reverend Henry Erskine Head, 
a Clerk in Holy Orders of the United Church of 
England and Ireland, and Rector of the rectory and 
parish church of Feniton in the county of Devon, and 
diocese of Exeter, and province of Canterbury, all and 
singular the articles, heads, positions, or interrogatories 
hereunder written, or hereafter-mentioned, touching 
and concerning your soul's health, and the lawful cor- 
rection and reformaticm of y6ur manners and excesses, 
and more especially for your having offended against 
the laws, statutes, and constitutions, and canons eccles- 
iastical of the realm, by having written and published 
or caused to be published in a certain newspaper, caUed 
the « Western Times,'* dated « Exeter, Saturday, 
August 21, 1841, a letter intituled, " a View of the 
Duplicity of the present System of Episcopal Ministra- 
tion, in a Letter addressed to the Parishioners of Feni- 
ton, Devon, occasioned by the Bishop of Exeter's 
Circular on Confirmation, by Henry Erskine Head, 
A*M., Rector of Feniton, Devon,'* in which letter it is 
openly affirmed and maintained that the ^^ Catechism," 
the *' order of Baptism," and the *' order of Confir- 
mation," in the Book of Conmion Prayer, contain 
erroneous and strange doctrines ; and wherein are also 
openly affirmed and maintained other positions in dero- 
gation and depravingof the said Bookof Common Prayer, 
contrary to the said laws, statutes, and to the constitu- 
tions and canons ecclesiastical of the realm, and against 
the peace and imity of the Church, us follows: — to wit. 
Fint. We article and object to you, the said Reverend 

Henry Erskine Head^ Clerk, that you know, believe, or 



THE ECCLESIASTICAL COURTS. 187 

baye heard that by the laws^ statutes, constitutioiis, and 
canons ecclesiastical of the realm, it is expressly for- 
bidden to any parson, vicar, or other minister whatso* 
ever of the United Church of England and Ireland, to 
say open prayer, in any church or chapel, or other place 
of public worship, or to administer the sacraments, or 
other rites and ceremonies of the Church, in any other 
form or after any other order than those contained in 
the Book of Common Prayer, and administration of 
the sacraments and other rites and ceremonies of the 
Church of England as by law established, and that it 
is also expressly forbidden to any such parson, vicar, or 
other minister of the said United Church of En^and 
and Ireland, whatsoever, to preach, declare, or speak 
any^thing to the derogation of the said Book of Com- 
mon Prayer and administration of the Sacraments and 
other rites and ceremonies of the Church of England, 
or of any thing therdn contained or of any part thereof, 
and that all ordinaries are empowered to take cogni- 
zance of such offences committed within the limits of 
their several jurisdictions, and to punish the offenders 
by admonition or suspension or deprivation according 
to the exigency of the case; and we article and object 
of everything in this and the subsequent articles con- 
tained, jointly and severally. 

Also we article and object to you, the said Reverend Second. 
Henry Erskine Head, Clerk, that for many years last 
past you have been, and now are, a Priest or Minister 
in Holy Orders of the United Church of England and 
Ireland, and for several years have been and now are 
Rector of the Rectory and Parish Church of Feniton, in 
the county of Devon, and diocese of Exeter, and pro- 
vince of Canterbury, and have been rightly and lawfully 



188 THE PRACTICE OP 

constitated and inducted in and to the said rectory^ and 
that for and as the lawful rector of the said rectory^ you 
haye for several years last past been and now are 
commonly accounted^ reputed^ and taken ; and we article 
and object of any other time^ parish^ ordination^ insti^ 
tution^ induction^ or promotion^ as shall appear from the 
lawful proof to be made in this cause^ and as before. 
Third. Abo we article and object to you^ the said Reverend 

Henry Erskine Head^ Clerk, and in supply of proof of 
the premises in the next preceding article mentioned, 
and to all other intents and purposes in ihe law what* 
soever, we do exhibit and hereto annex a certain paper 
writing, marked with the letter A, and will that the 
same be received and taken as part and parcel hereof, 
and as if herein read and inserted^ and do propoimd 
the same to be and contain a true and authentic copy 
of the act of institution of you, the said Reverend 
Henry Erskine Head, in and to the said Rectory and 
Parish Church of Feniton, in the county of Devon, and 
diocese of Exeter, and province of Canterbury, and that 
Ae same hath been faithfully extracted from the R^is-* 
ter Book of Institutions kept and remaining in the 
principal registry of the Lord Bishop of Exeter, at the 
dty of Exeter, and hath been carefully collated with 
the original entry therein, and agrees therewith, and 
that the said authentic copy or exhibit is subscribed by 
Ralph Barnes, deputy registrar of the said court, to 
whose subscription full frdth and credit is and ought to 
be given ; that all and singular the contents of the said 
original entry and exhibit were and are true> that all 
things were so had and done as therein contained^ and 
that Henry Erskine Head, Clerk, therein mentioned, 
and you, tlie Reverend Henry Erskine Head, Clerk, 



THE ECCLESIASTICAL COURTS. 189 

against in tliis cause^ were and are one and 
tbe same person^ and not divers ; that the rectory and 
parish church of Feniton^ in the county of Devon, 
and diocese of Exeter, and province of Canterbury, 
therdn mentioned, and the rectory and parish church 
of Feniton, in the said county, diocese, and province 
mentioned in the next preceding article was and is one 
and the same ecclesiastical living, benefice, or promo* 
tion, and not divers^ and this was and is true, and we 
artide and object as before. 

Also we article and object to you, the said Re- Fourth. 
verend Henry Elrskine Head, Clerk, that you^ the said 
Beverend Henry Erskine Head, in the month of Au- 
gust in tiiie year of our Lord 1841, wrote and pubUshed, 
or caused to be published, within the diocese of Exeter, 
(to wit, in a certain newspaper called the *' Western 
Times,^ dated '^ Exet^, Saturday, August 21, 1841,^' 
a letter entitled ^^ A View of the Duplicity of Episcopal 
Ministration, in a Letter addressed to the Parishioners of 
Fenitonj Devon, occasioned by the Bishop of Exeter's 
Circular on Confirmation, by Henry Erskine Head, A.M.9 
Bector of Feniton, Devon,'' in which letter you ad- 
visedly affirmed and maintained that the '^ Catechism," 
the ^^ Order of Baptism," and the ^^ Order of Confir- 
mationj" in the Book of Common Prayer, contain 
enoneoQs and strange doctrine, and wherein you also 
advisedly affirmed and maintained other positions in 
derogation and depraving of the said Book of Common 
Prayer, contrary or repugnant to the laws, statutes, 
csmstitations, and canons ecclesiastical of the realm^ 
and against the peace and unity of the Church, and this 
was and is true, &c. 



190 THE PRACTICE OF 

Fifth. Also we article and object to you^ the said Reverend 

Henry Erskine Head, Clerk, that in the said letter 
mentioned in the next preceding article, are contained 
the following passages, ^^ There spake the spirit of the 
present system of episcopal ministration ; all the bishops, 
it is true, may not be quite so incautious as the Bishop 
of Exeter ; but, inasmuch as they connive at and con- 
tinue the use of the Cathechism and Baptismal and 
Confirmation services in their present state, I do not 
hesitate to aver that they act upon a system by which 
the episcopal order is exalted under false pretences, and 
at the expense of the doctrines of the Bible. As re- 
formation in this respect is not hopeless, and as I also 
am pledged by my ordination vows as a minister of the 
Church of England to banish and drive away all erro- 
neous doctrine, I do hereby decline and refuse to give 
any countenance whatever to the office of Confirmation 
as it is now used by tiieir lordships the bishops, and 
instead of recommending, in compliance with the epis- 
copal circular, the perusal and repusal of that service 
to the young persons of this parish, I warn them all — 
young, old, and middle-aged — to beware, in the name 
of God, of tiie ^erroneous and strange doctrine' which 
it contains.*' ^' It is also a fact that the Prayer Book 
sins against itself, some parts of it are at variance with 
other parts. The fi>urth, sixth, eighth, and thirty-sixth 
canons are repugnant to the first and third ordination 
vows. Some of the dogmas in the Catechism, Confir- 
mation, and Baptismal services are utterly inconsistent 
with the doctrines contained in the eleventh, twelfth, 
thirteenth, and seventeenth articles.'' " If their lord- 
ships wish to satisfy the public that their exaltation i9 



TH£ SCCLE8IA8TICAL COURTS. 1^1 



JQSt and right, let their lordships, instead of teaching the 
enoneous doctrine in the Church services, banish and 
drnre it away; instead of bending the Bible to the 
obliquities of the Prayer Book, let them make, or en- 
deaTOor to make, this Prayer Book consistent with the 
BiUe and with itself; instead of reversing the apostolic 
role, let them ' abhor that which is evil ^ in the Prayer 
Book, and ' cleave to that which is good' in it'': or 
to that or the like effect, a copy of which said news- 
paper, called the '^ Western Times," and dated ^ Ex- 
eter, Saturday, Augost 21, 1841," containing the said 
letter so written by you, the said Reverend Henry £r- 
done Head, Clerk, we do exhibit and hereto annex, 
in part supply of proof of the premises in this and the 
preceding article mentioned, and will that the same 
shall be taken and read as if herein inserted, the same 
being marked with the letter B; and this was, &c. 

Also we article and object to you, the said Reverend- Siith. 
Henry Erskine Head, Clerk, that you have several 
times, or at least once, admitted and declared that you 
wrote and published, or caused to be published, in the 
Ihe said newspaper called the '' Western Times," the 
said letter in the two preceding artides mentioned, and 
this was, &c. 

Also we article and object to you, the said Reverend Seventh. 
Henry Elrskine Head, Clerk, that you were and are of 
the diocese, and Rector of the Rectory and Parish 
Church of Feniton, in the diocese of Exeter as aforesaid, 
and that there was and is a scandal and evil report in 
the said diocese against you, the said Reverend Henry 
Ecddne Head, Clerk, as having offended against the 
laws ecclesiastical, by having written and published or 



192 THE PRACTICE OF 

caused to be published, in the said newspaper, called the 
" Western Times/' and dated " Exeter, Saturday, 
August 21, 1841,^' the said letter in several of the pre- 
ceding articles mentioned, and that by reason thereof, 
and of a certain act or statute made m the Parliament 
holden at Westminster in the third and fourth years of 
the -reign of her present Majesty Queen Victoria, en- 
titled, '^ An Act for better enforcing Church Discipline," 
and of the letters of request imder the hand and seal 
of the Bishop of the said diocese of Exeter, presented 
and accepted in this cause, you were and are subject to 
the jurisdiction of this court. And this was, &c. 

Eighth. Also we article and object to you, the said Reverend 

Henry Erskine Head, Clerk, that of and concerning the 
premises, it hath been and is rightiy and duly com- 
plained by the said Ralph Sanders, the voluntary pro- 
moter of our office, to us, the judge aforesaid, and to 
this court And this, &c» 

Ninth. Also we article and object to you, the said Reverend 

Henry Erskine Head, Clerk, that all and singular the 
premises were and are true, public, and notorious, of 
which legal proof being made to us, the judge aforesaid 
and to this court, we will that you, the said Reverend 
Henry Erskine Head, Clerk, be duly and canonicaUy 
corrected and punished according to the gravity of your 
offence and the exigency of the law, and that you be 
condemned in the costs made and to be made on the 
part and behalf of the said Ralph Sanders, the pro- 
moter of our office in this cause, and compelled to the 
due payment thereof; and that it be further done and 
decreed in the premises, as to right and justioe shall 
appertain, the benefit of the law being always preserved^ 



THB ECCLRSIA8TICAL COURTS. 195 



Articles. 



Articles 



In the name of Qod, amen, &c. 

We article and object to you, the said Rererend acaioata 

A B that by the ecclesiastical laws, Jl®"""!- 

' ^ after codyi 



canons^ and constitiitions of the Church of England^ tion at corn- 
all clerks and ministers in holy orders are particularly y^l ^* 
enjoined and required to be decent and reverend 
in their general behaviour, in every respect^ and to 
abstain from all incontinence, lewdness, immorality^ 
ohacenity, indec^icy, and from all unnatural and sodo- 
matical practices and propensities, and from all other 
filtby lasts, or any other excess whatever, or from en- 
oomsging the same in others ; and that, on the contrary^ 
they should always bear in mind that they ought to 
exod all others in purity of life, and be examples to 
the people to live well and Christianly, aud that they 
diould always be doing the things which shall apper- 
tain to honesty^ and endeavouring to proBit the Church 
of Ood, and especially that they shoidd eschew all 
ev3 conduct who^by scandal may be brought upon 
their sacred office, the progress of true religion hindered, 
and the souls of those committed to their care put in 
peril, under pain of degradation, deprivation, or suspen- 
sbn from the ministry, and firom the performance of 
aD dexiBal functions whatever, as the exigency of the 
case and the law thereupon may require and authorize 
in order and for the sake of purging the Church of such 
unwordiy ministers; and this was, &c* 

Also we article and object to you, the said A Second. 

B , that you were duly admitted to the holy order 

crf'a deacon of the Church of England, by the Honour- 



IM THE PRACTICE OF 

able and Right Reyerend Lord Bbhop of 

at a general ordination ui the parish 
of 9 in the county of , on 9 the 

day of , in the year 18 , by virtue of 

letters dimissory from the Lord Bishop of 9^"^ 

that an entry of such ordination was duly made in the 
Book of Acts kept in and for the diocese of 9 

in the registry of the Lord Bishop of 9 and that 

previoTisly to, and on the occasion of yoar being so ad- 
mitted to the holy order of a deacon as aforesaid, you 
subscribed to the Thirty-nine Articles of the reli- 
gion of the Church of England^ and to the three 
articles mentioned in the thirty-sixth canon, and to all 
things that are contained in them, and declared that 
you would conform to the Litui^ of the United Church 
of England and Ireland, as by law established ; and ac- 
cordingly, and in token thereof, you signed your name 

*^ A B ,'' in the original subscription book, 

kept in and for the diocese of aforesaid, as 

now appears therein, and to which we will to refer; 
and ihis'was, &c. 

Thiid. Also we article and object to you, the said A ' 

B , that in part supply of proof of the premises 

in the next preceding article in part mentioned, and to 
all other intents and purposes in the law whatsoever, 
we do exhibit, hereto annex, and will to be here read 
and inserted and taken as part and parcel hereof, a cer- 
tain paper writing marked No. 1, and do article and 
object the same to be and contain a true and authentic 
copy of the act so entered and made in the said Book of 
Acts kept in and for the episcopal registry of the Lord 
Bishop of for tiie said diocese, as aforesaid, on 

your ordination as a deacon of the Churdi of England 



THE CCCLESlA8TtCAL GOURTS. l9o 

as in One next pieoeding aitide mentioned. That the 
same hath been faithfully extracted from the original 
Book of Acts, kept in and for the said diocese of 

and carefully collated and found to agree there- 
witib ; that all and singular the contents of the said ex- 
hibit were and are true^ that all things were so had and 
done as therein contained, and that A—— B , 

theron mentioned, and also A B , mentioned 

in the said ori^al subscription book, and the next 

preceding artide, and you, the said Reverend A 

B > Clerk, the party accused and complained of 

in this cause, were and are one and the same person, 
and not divers ; and this, &c. 

Also we artide and object to you the said A Fourth. 

B . that the names **A B /^ so 

written and subscribed in the said original subscription 
book, kept in and for the diocese of , on the 

occaaiovi aforesaid, w^e and are of the proper hand- 
writing and subscription of you the said A—— B ■ - ^ ■■ , 
and are so well known or believed to be by divers 
persons of good faith, credit, and reputation, who have 
frequently seen you write and subscribe your name, 
and have thereby become well acquainted with your 
manner and character of handwriting and subscription ; 
and this, &c 

Also we article and object to you the said A Fifth. 

B ■ , that you were duly admitted to the holy 

order of a priest of the Church of England, by the 
Ri^t Reverend , Lord Bishop of , at 

an ordination in the Cathedral Church of , on 

the day of , in the year 18 , and that 

an entry of such ordination was duly made in the Book 
of Acts kept in and for the said diocese of 

o 2 



196 TUB PRACTIC£ OF 

and preserved in the office and custody of 
£sq., secretary to the Lord Bishop of 
and that previously to and on the occasion of your 
being so admitted to the holy order of priest as afore- 
<said, you subscribed to the thirty-nine Articles of 
JLeligion of the United Church of England and Iiehnd, 
and to three artides in the d6th Canon, and to all 
things therein contained, and accordingly and in token 
tiiereof you signed your name " A ■ B— /* in 
the original subscription book, kept in and for the 
diooese of aforesaid, as now appears theceiii, 

and to which we will to refer ; and this, &c. 
Sixth. Also we article and object to you, the saidA— - 

B ■ , that in part supply of proof of the pre- 
mises in the next preceding article mentioned, and tx) 
all other intents and purposes in the law whatsoever, 
we do exhibit, heretx) annexed, and will to be here read 
md inserted, and taken as part and parcel hereof, a 
certain paper writing marked No. 2, and we article and 
object the same to be and contain a true and authentic 
copy of the act so enteredand made in tiie said Book 
of Acts kept in and fbr the said diooese of > 

and carefully collated and foimd to agree therewith; 
that aU and siiq^ular the contents of the said exhibit 
were and are true, that all things were so had and done 
as therein contained, and that A B , 



'dsereon mentioned, and ako that A ■■ ■ B- 



menti(«ed in the said original subscription book, and 
"mentioned in the next preceding artide, and you the 
«aid Reverend A—— B- , Clerk, the party 

accused and complained of in this cause were and 
are one and the same person and not divers; and 
this, &c. 



THB BCCLRSIASTICAL COURTS. 197 

Also *we aitielfi and object to you, the said A-*-^— Seventh. 
B , that the names A B — ■ — > so writ- 
tea sad subscribed in the said original subscription 
book kept in and for the said diocese of on 

the oocasaon afoiesaid^ were and are ^ the jHToper 
handwriliiig and subscription of you the said A-^-«^ 
B ■ ^ and are so wdl known or believed to bcj by 
divers persons of good fidth, cre£ty and reputation, 
who have finaquently seen you write and subscribe your 
nam^ and have thereby become well acquainted with 
your manner and diaracter of handwriting and sob- 
scripticm ; and this, &c. 

Also we artide and object to you, l^e said Reverend Eighth. 

A B - ■ ■ , that, at the general quarter sessions 

of tiie peace of our Sovereign Lady the Queen, holden 
aft , in and for the city 

andoosmtyof ,on ,tbe day of , 

in the year of our Lord 18—-, it was presented that you, 

the aaid Reverend A B , by the name and 

addition of A-^— B » late of the parish of 

afafeaaid, in the city and county of aforesaid. 

Clerk, being a person of most wicked and abandoned 
nmid and di^xmition, on the day of , in the 

year of the reign of our* Soverei^ Lady Victoria, of 
the United Kingdom of Great Britain and Ireland, 
Queen, DefiEoider <d the Fdith^ in the paririi of 
afefeaaid, in the ciiy end county aforesaid, did wickedly 
and unlawfidly solicit invite, and endeavour to per- 

enade and induce one C3 D ^ to permit and 

soffier yon, the said A B » then and there, 

widcedly andfeloniously, to commit that detestable and 

ibominabk crime called buggery, with the said C 

D , against the order of nature, and against the 



198 



THE PRACTICE OF 



peace of our said Lady the Queen, her crown and dignity ; 
and we further article and object to you the said A— 

B , that at the said general quarter sessions, 

so holden at the , in the 
city and county aforesaid, on the day and year afore- 
said, you, the said A B , were tried for and 

found guilty of the offence aforesaid, as charged upon 
you, in the manner and form aforesaid ; and this, &c. 

Kinth. ^so we article and object to you, the said A 

B— — — , that in part supply of proof of the premises 
mentioned in the next preceding article, and to all 
intents and purposes in the law^ whatsoever, we do ex- 
hibit hereunto, annex, and will to have here read and in- 
serted and taken as part and parcel hereof^ a certain paper 
writing marked No. 3, and we article and object the same 
to be and contain a true and authentic copy of the ori- 
ginal record of the said proceedings and conviction, so 
had, done^ and made at the said general quarter ses- 
sions of the peace, so holden at tiie 

, in and for the city and county of , 
on , the day of , 18 ^ as aforesaid, 
beginning thus : — ^^ City and county of to wit, 
be it remembered that at the general quarter ses- 
sions of tiie peace,^^ ending thus ^ The said A 

B do pay a fine of twenty shillings to our 

said Lady the Queen/^ and thus subscribed^ '^ 

/' and that the same is now or lately 
was remaining on the roUs of the sessions for the 
city and county of , and has been duly exa- 
mined with the said original record^ and that A 

B , Clerk, therein mentioned^ and you tiie 

said A B , were and are one and the same 

person^ and not divers ; and tfais^ &c. 



THB BCCXB8IA8TICAL COURTS. ^^ 

Also we article and object to you, the said Rere- '^*'**^- 
^^^^^ A B y that for your having been con- 
victed of the enormons, detestable, and abominable crime 
aforesaid, and having thereby caused great scandal to 
the Church of God, and your holy order, and hindering 
the progress of true religion, you ought, by the eccle- 
siastical laws, canons, and constitutions of England, to 
be d^iraded, deprived, or suspended from the minis- 
try and from the performance of all clerical frmctions 
whatever within the province of Canterbury; and 
this, &c 

Also we article and object to you, the said Reverend Eleventh, 

A B , that you were and are of the dty 

and county of , and that you were and are con- 

victed of having committed the crime aforesaid, within 
the said city and county of , and that you hold 

no preferment in the United Church of England and 
Ireland ; and therefore, and by reason of the premises 
and the letters of request from the Right Reverend 
Father in God, , by Divine permission, 

of Bishop , presented to and 

sooq>ted by us in this cause, and by reason of your 
appearance in the same, were and are subject to the 
jurisdiction of tibis court ; and this, &c. 

Also we article and object to you, the said Reverend Twelfth. 

A B , that all and singular the premises 

were and are true, public, and notorious, and thereof 
there was and is a public voice, fame, and report, of 
which legal proof being made to us, the judge afore- 
said, and to this court, we vrill that you the said Reve- 
rend A B be pronounced to have incurred 

and to be involved in the pains and penalties of law for 
having been convicted of having committed the crime 
aforesaid, and that you, tiie said A B , bepro- 



^WO THI PRACTICB OF 

nonnoed to have ineurred the sentence of degradation, 
privation^ or suspension from the ministry^ and from the 
performance of all clerical functions whatsoever, within 
the province of Canterbury, and may and ought to be de« 
graded from^ deprived of, or suspended from the same 
throughout the said province of Canterbury, according to 
the exigency of the law, and also be condemned in the 
costs of this suit, made and to be made by and on the 

part and behalf of the said E F , the party 

promoting our office in this cause, and compelled to 
the due payment thereof, by our definitive sentence on 
final decree to be read and promulged or made and inter- 
posed in this cause, and further that it shall be done 
and decreed as may be lawful and right in this behalf^ 
the benefit of the law being always preserved. 

Articles. 

Articles Jn the name of God. amen, &c. 

^vyman for We article and object to you, the said Wilfred Speer, 

^^kenneis ^* ^^^ ^^^ "®' *"^ ^^^ ^^^ J^^^ ^^ P*** ^^^ 
VmL been, a priest or minister in holy orders of the Church 

of England and Ireknd^ and were, on or about the 
thirteenth day of March, in the year of our Lord 183^ 
licensed by the Right Reverend Father in God, Charles 
Richard^ by Divine permission. Lord Bishop of Win- 
chester, to be perpetual curate of the perpetual curacy of 
Thames Ditton aforesaid, and soon after entered on the 
spiritual duties of the said perpetual curacy, as perpetual 
curate thereof, and have ever since continued to be, and 
save as hereinafter articled and objected to^ act as perpe- 
tual curate thereof; and we article and object every- 
thing in this and the subsequent articles to be con- 
tained, jointly and severally. 



THE ECCLESIASTICAL COURTS. 201 

Also we article and object to you^ the said Wilfred Second. 
Speer, that in supply of proof of the premises set forth 
in the next preceding article^ and to all other intents 
and purposes in the law whatsover, we do exhibit and 
hereto annex^ and will to be here read and inserted 
and taken as part and parcel hereof^ a certain paper 
writing marked No. 1; and we artide and object the 
same to be and contain a true copy of the act on licens- 
ing you to the perpetual curacy of Thames Ditton, 
aforesaid^ and that the same hath been faithfully ex-* 
tracted from the Book of Acts of the said Lord Bishop 
of Winchester^ preserved in the office and custody of 
John Burden^ Esquire^ as secretary of the said liord 
Bishop^ and hath been carefully collated with the origi- 
nal entry now remaining therein, and agrees therewith ; 
that all and singular the contents of the said exhibit^ 
were and are true; that all things were so had and done 
as therein contained, and that Wilfred Speer, therein 
mentioned to have been licensed to the perpetual 
coracy of Thames Ditton aforesaid, in the county and dio« 
cese aforesaid, and you, the said Wilfred Speer, the party 
accused and complained of in this cause, was and is one 
and the same person, and not divers; and that the per- 
petual curacy of Thames Ditton therein mentioned, and 
the perpetual curacy of Thames Ditton of which you 
are perpetual curate, was and is one and the same 
perpetual curacy, and not divers; and this was, &c. 

Also we article and object to you, the said Wilfred Third. 
Speer, that ever since your entrance on the spiritual 
duties of the said perpetual curacy of Thames Ditton, 
you have addicted yourself to the immoderate use of wine 
and spirituous liquors; that you have been in the habit 
of frequenting a public houseor small inn,in Thames Dit^ 



THE FRACnCS OF 

ton aforesaid, known by tbe nunc of the Swvi, and of 
there drinking to escesa, and thereby becoming intoxi- 
cated, to tbe great scandal and offence of yotir parish- 
ioners and othen; and this was, &c. 

A]ao we article and object to you, the said TVBfred 
Speer, that ever since yonr entjwiee or the spiritual 
duties of the perpetaal curacy of Thames Ditton, yon 
hare been in tbe habitof performing IKrine service in the 
church of the said perpetual enracy in an indecent and 
irrererent manner, and have thereby and otherwise by 
your indecent demeanour and conduct in the said church, 
dnrii^ the time of the peifennance of Divine service, 
caused great offence and scandal to your parishioners 
and other persons assembled on snch occasions for tbe 
purpose of Divine worship, and that you have by such 
conduct and demeanour driven luony of your puisb- 
ionevB Rway&om attending the said churdi; that during 
the time of Divine service, on Sunday mornings, you 
have been constantly famished firom the aforesaid pub- 
lic-house or small inn, called the Swui, mUt a bottle of 
port wine or wiA some brandy, which you h«ve invariably 
drunk in the vestry room af the sud church, daring 
the time ol mteh service; that on many of such occar 
sions you have thereby become and evinced by youi 
conduct a»d demeanoor that you were intoxicated, and 
have been scarc^ able, by reason of such intoxicatjon, 
to get through the sernces or preat^ your sermon, to 
the great seandat and oi^nee of tbe conjugation then 
and there assembled for the piapose of Divine wor- 
ship ; and this was, &c. 

Also we article and olgect to you, tbe said Wilfred 
Speer, that on a Sunday morning in the month of June, 
or in the month of August, in the yeu oi our hoi^ 



THE BCCLBSIA8TICAL COURTS. 20ft 

1836, during the leadiiig of the prayeniy you were^ 
and by your conduct and demeanour eyineed that 
you were, in a state of intoxication, and totally unfit 
to finish the sendee,, and that such your state and 
condition were evident, and occasioned great scandal 
and offence to the ccmgr^ation then and there assem- 
bled for the purpose of Divine worship; that on the 
said occasion, at the end of the communion service 
Sir Charles Sullivan, Baronet, a captain in her Mac^- 
jesty^s navy,, and a parishioner and inhabitant of the 
said parish, being present in the church, and observing 
your state and condition, eaHed Lecmard Seeley, the 
diurchwarden of the pari«^, who, after communicatii^ 
with the said Sir Charles Sullivan, proceeded into the 
vestry where you, the said Wilfired Speer, then wwe; 
and the said Leonard: Seeley then and there r^noup 
strated with you, md uiged to you that by reason of 
your intoxication yott w^re in an unfit state to proceed 
with the service; that the said Sir Charles Sullivan 
also went into the said vestry, and also represented to 
you» the said Wilfred Speer, that you were in an imfit 
state to continue the service, and c^fered that he would 
take upon himself to say the oongr^ation would wil- 
lingly diq>ense with the sermon, upon which you, the 
said Wilfred Speer, said, ^'Do you think they will 
excuse the sermoa?^^ and eagerly adopted thesugges- 
lion q£ the said Sir Charlea Sullivan ; that accordingly, 
with your fiiU concunenoe, notice was given in the said 
church that there would be no sermouj and that by 
reason of the premises there waano sermon in the said 
church on the said occasion ; and this was, &c. 

Abo we article and object to you, Uie said Wilfred Sixth. 
Speer, that in Ae afternoon of one day in the summer 



204 THB PRACTICE OF 

of the year 1836 (and whilst the church of the perpe- 
tual curacy of Thames Ditton was undergoing repair), 
you called on Captain Rowland Edward WiUiams, one 
of your parishioners, in a state of intoxication ; that 
on your leaving his house, on the said occasion, you 
attempted to mount your horse, and in so doing put 
your foot into the stirrup, but, in lieu of seating your- 
self in the saddle, you, by reason of the state of intoxi- 
cation in which you then wefe, fell over the other side 
into the middle of the road ; and this was, &c« 

Seventh. Also we article and object to you, the said Wilfred 

Speer, that on Sunday, the 25th day of March, in the 
year of our Lord 1838, on occasion of christening the 
child of William Kam, a parishioner and inhabitant of 
the said parish, you read the service in an indecent 
manner, and so as to be almost unintelligible, and that 
at such time you were, and evinced by your conduct 
and demeanour that you were, in a state of intoxica- 
tion ; and we further article and object to you, the said 
Wilfred Speer, that after the christening was over, the 
said William Kam gave you the regular fee due on 
such occasions; that on the said parties leaving the 
church you called them back again, and held up the 
money and said, '^Look ye here at his fee,'^ and 
remarked that clergymen were said to rob the poor, 
and added '^ This does not look like it,'^ and you then 
and there otherwise conducted and expressed yourself 
in a manner inconsistent with and unbecoming to the 
occasion, time, and place, and so as to evince that you 
were, as in fact you were, in a state of intoxication ; 
and this was, &c. 

Eighth. Also we article and object to you, the said Wilfred 

Speer, that in the afternoon of one Sunday, in the 



THB ECCLESIASTICAL COURTS. 205 

month of July, in the said year 1838, yon read the 
prayers in a very irreverent and unseemly manner, and 
that it was with extreme difficulty you were able to 
preach your sermon, and that on such occasion you 
were, and evinced by your conduct and demeanour that 
you were, in a state of intoxication ; and this was, &c« 

Also we article and object to you, the said Wilfred Ninth. 
Speer, that on the morning of Sunday, the twelfth day 
of August, in the said year' 1838, you performed Divine 
service in the aforesaid church in a very irreverent and 
indecent manner, that you made a great many mis- 
takes, and were scarcely able to get through the duties 
of the said service, and that on such occasion you were, 
and evinced by your conduct and demeanour that you 
were, in a state of intoxication ; and this was, &a 

Also we article and object to you, the said Wilfred Tenth. 
Speer, that, in the afternoon of Sunday the tenth day 
of March, in the year of our Lord 1839, you were in 
a state of intoxication, and evinced that you were so 
by your conduct and demeanour; that you read the 
prayers in the said church, and afterwards preached the 
sermon in such a manner as to be almost unintelligible, 
and as you proceeded you became, and evinced by 
your conduct and demeanour that you became, more 
intoxicated, and that at last, by reason of such intoxi- 
cation, you sunk down in the pulpit, and were unable 
to give the blessing ; and this was, &c. 

Also we article and object to you, the said WUfired Eleventh. 
Speer, that by your indecent and disgraceful conduct, 
demeanour, and language, hereinbefore set forth, you 
have given great scandal and offence to the parishio- 
ners and inhabitants of the said parish; that com- 
plaints having been made to the said Lord Bishop of 



206 



THE PRACTICE OF 



Twelfth. 



Thirteenth. 



Winchester^ his lordship du«cted the Reverend Robert 
Sutton, tlie Rural Dean, to inquire into the truth of 
such complaints; that the said Rural Dean having 
proceeded to make such inquiry, reported the result 
thereof to the said Bishop, and tiiat thereupon the pre- 
sent proceedings were instituted; and we also article 
and object to you, that you, the said Wilfred Speer, 
shortly after such inquiry and report, to wit, from and 
after the tenth day of March last, ceased to perform 
and have ever since, up to the service on you of the 
•citation by decree in this cause, abstained from the 
performance of spiritual duties and offices witiiin the 
parish ; and this was, &C 

Also we article and object to you, the said Wilfred 
Speer, that you are of the commissarydiip of Surrey, 
diocese of Winchester, and province of Canterbury, 
and therefore and by reason of the premises, and of the 
letters of request presented to and accepted by us in 
this cause, and of the appearance given for you to 
the citation by decree issued in this cause, were and are 
subject to the jurisdiction of this court; and this was, &c. 

Also we article and object to you, the said Wilfred 
Speer, that all and singular the premises were and are 
true, public, and notorious, of which legal proof being 
4nade to us the judge aforesaid and to this court, we 
will that you, the said Wilfred Speer, be canonically 
corrected and punished according to the exigency of 
.the law, and also be condemned in the costs of this 
suit, made and to be made on the part and behalf of 
tiie said John Burder, the party agent and complainant, 
4md compelled to the due payment thereof by our defi- 
nitive sentence or final interlocutory decree, to be read 
and promulged or made and interposed in this cause, 



•Jd^uvQ JO aoauoij ai{) }o uoi^qooauoq aq:^ iq ptre ut 
oiodn pdaxSBpire ofpsm YK>v\ms9pQ'^ sooireQ piro saopti!) 
-i^suoQ 9i^ JO q;89 »q? ^q p™ «| *^«^ ^WOO«a ^dOAkg 
seinoqj^ pm aip ^noA o^ t^odfqo pcre appjs 9^ oqy *q)inoj 

'Oij 'sQiii siti) pcre f mpiai 
sii];i JO pK>i)8tsi89|309 sooc^n^^i^suoo pan 'suowso 'SAkiq 91^ 
dAjasqo o) p^nq^ ®^ ^o^s^ !)93Aig sBmoqj^ pros aq^ 
*nol ^iBsajojB i^oapor) jo qomqo qsuBd pu« aSexeoiA 
dq). JO jreoiA aq:^ bb pira ^pu^e^Sa^ jo qojnqQ aq) jo 
sispio X|oq m Jd^siuim jo )S9ud b s« ':(Bq;( ^oos^ ^dding 
seinoqx pres sq^ 'nol oj %09t({0 pire QprpB 9ii osjv *F!TX 

*a3^ 'sQAi siqi pire fsjaAip i^ou 
piie ^0188 aq:| djre pu« aidii ^api:|jB SuipQoajd %X9U aq:} 
m pdaot^uam Xdopar) jo aSaiBOiA ai^ pcre 'pauor^uaiu 
maidqil Xaapar) jo dSeivaiA 9X[% %'BXf^ puB i sjOAip :^ou 
pcre ^uo&idd auitis aq^ puB auo aiB puB 919^ ^astiBO siqii 
ui JO pauiBidraoo puB pasnaoB i^jBd aqi ^oosa :>9aAg 
SBcaoqj^ piBS aq) ^noi puB ^pauopuam uiaiaq; ^>[i9lQ 
^03S3 :^aajig sBmoiu;^ ^'BJjf^ puB f paniB:|uoa' uiajaq:) 
aiB SB aaop pcre pBq os aiaii sSinqt^ ip i^Bq; ^aaq 
aiB pcre aiaii ^iqiqxa pres 9X{% }o s^^ua^aoa aq^ jBpiScns 
poB IP %'Bup, f cpuiajaq:^ aaoSs o) punoj puB 'uiaiaq!| 
Sinureuaj alou ijc;ua |buiSuo aq:) q^m pa^BQoa X[[njajB3 
poB ^3[ooq pres aq^ inojj pa^aBji^xa X[itijx{;|tbj uaaq cpBq 
aores aq:^ i^Bq:^ i apl:^B 9aipaaajd :^xau aq:^ ui pauot^uacu 
SB ^piBsaiojB laupag jo aSBxsaiA aq:^ o) pa:^n)i!|sui Sapq 
inoA uo 'iqoouiq i^b aaB]Bj [Bdoasid^ 9\\% m ^uiooui'j 
JO asaooiQ aq^ jo iLir^siSa^ aq^ uc :^da7[ i[ooq ^uaca 
-nmm aq:) in apBin Xqua puiSuo aq:^ jo idoo apuaq:^ 
-nB pcre aOiQ b ciiB:)uoa pcre aq o) acuBs aqi) :|aarqo pcre 
a[ai:|jre 9JA puB ^i 'o^ pai[iBin ^SupuAi jadBd uiB!^aa b 
'joaiaq pared pcre !|jred sb uai[B:; pcre 'pai^asin pcre pBai 
ajiaq aq 0:1 jju^ puB 'xauuB oi^aiaq pcre ^iqiqxa op aM 

do asixovvd 3HX 80Z 



'j9Aaos)9qii MUBi 9J^ ui 896odjmd putt s^ad^ i9vpo jp 
0% puB ^dppjtt Suipdooid %xdu. 9\^ m pduot^udin sasioi 
-Old dqt) JO joojd jo liddns i^isd ui %^i^ ^o^^ ^P^^S 
•pao99s sttiuoi{j^ pitts aip ^noi o) pafqo putt appiis oJi osfv 
*93^ ^sttM sup pue iaq oi ua3|tt:( putt 'p9:^nd9i 'pd^unoo 
•ott ^luouiTnoo 9J« iiou putt udoq ^pinsaxojtt uorpnpoi 
putt uoptiric^sui mol aouis J9Ad '9Attq ^oasg )99^8 
Bttmoqji pitts aq;) ^noil ittOiA jpvts stt putt joj q;Bi^ pue 
f qojnqo qsuttd putt dSttJttOiA ppni aqt^ jo jreoiA aq; 'ajre 

jiiou noi i^ttq; pue '6&8I P^^ J"^<> P ^^^^^ ^M)^ ^ ^•'^ 
-uidoaQ JO ittp q^^x ^^ ^^ 'ai9ii nol :|ttq:( ipvpiotiittd 
ojouz putt ^ua9q aouis j9A3 OAttq ^^^oos^ ^od-^g sttuioqx 
pitts 9\^ ^noJi t^ttqi putt i SuiunKiJdddtt asiAiiCutt ui jo ^ 
-3uo|3q o:(unayraq) saauttuaiMnddtt putt 'sioquxoui 's^qSu 
dq^ jttpiSuis pue ip x^iik jan^So^ 'pissajojtt ibupag 
JO qajnip qsued pus oSttjreoiA aq^ 09 putt ui pd^onp 

•-UI i|pifMttI BpXBMJSai^ UOOS 9I9AL pUtt '^JUiqiQI^UttQ JO 
OOUIAOjd pUB 'UJOOUFJ JO 9890Oip putt i^uuoo 9q) m 

^laupag jo dSttjreoiA aq^ o^ putt ui ^ooufj jo doqsig 

pio^ ^uoissioudd duiAiQ Xq 'uqof ^og ui JQxffsj^ pua[ 

•OAd)i 9q8ig dq^ iq ^d|n!^i:|8uc iC^pKnuouttO pue i[[afAtti 

ojaAL nol 'g£Sl P^bo^ Jnio jo jreol aqi ui ^iCpif jo ivp 

•?Mi J W>6 ®T? ^™q« ^o uo ^ttqj putt ^puttiSug jo qoJuwE) aq; 

•snoireo JO gxapio i|oq ui la^siunn jo t^sdud tt 'uaaq 9Attq ^S9d 

-XaqwTO j^ Vnq ww^ pu9A9s joj putt 'a» iaou uoiC Jittq; <)i|0083 

w8uiMj9p ^asALg sttoioqx ppw aq^ *uoX oij ^oofqo pus apr|jtt a^ 

sdpiijy *09 'uauie 'pog jo auittu aq^ u j 

"pauasajd sIuMpi Suiaq Attf aq:| jo ^^auaq 
oq^ 'jfttqaq siqi ui TqSu putt pi^tt| aq Jittqs stt sasnoajd 
oq:^ UI paAjasqo putt auop aq ijBqs )i :^ttq| jaq:|jiL^ pus 

lOZ *6x«aoo nvaixfyxsaioaa anx 



THE ECCLESIASTICAL COURTS. 209 

bury^ with the King's Majesty's license^ in the year of 
our Lord 1603^ which said constitution or canon is en- 
titled^ '^ Ministers not to refuse to christen or bury/' 
it is decreed^ ordained^ and contained^ as follows^ that 
is to say, '^ No minister shall refuse or delay to christen 
any child, according to the form of the Book of Common 
Prayer, that is brought to the church to him upon Sun- 
days or holidays to be christened, or to bury any corpse 
that is brought to the church or churchyard, convenient 
warning being given him thereof before in such manner 
and form as is prescribed in the said Book of Common 
Prayer ; and if he shall refuse to christen the one or bury 
the other (except the party deceased were denounced 
excommunicated, majori ea:commumcaiione, for some 
grievous and notorious crime, and no man able to testify 
of his repentance) he shall be suspended by the bishop 
of the diocese from his ministry by the space of three 
months /' or it is, by the said 68th constitution or 
canon, (to which we refer,) decreed and ordained to the 
like purport or effect ; and this, &c. 

Also we article and object to you, the said Thomas Fifth. 
Sweet Escott, that, notwithstanding the premises (in 
the aforegoing articles contained), and in contempt of 
the law and canon aforesaid, you, the said Thomas 
Sweet Escott, did, on two several occasions, happening 
respectively on the 16th and I7th days of December, 
in the year of our Lord 1839, expressly declare 
your determination not to bury in the churchyard 
of Gedney aforesaid, the corpse of Elizabeth Ann 
Cliff, the infant daughter of Thomas Cliff and Sarah 
Cliff, his wife, of the parish of Gedney aforesaid, if 
brought for burial to the said church or churchyard, 
and that accordingly, and in pursuance of such your 

p 



V 



210 THE PRACTICE OF 

declared determination, you, the said Thomas Sweet 
Escott, on the I7th day of the said month of Decem- 
ber, or on some other day in the said month, £d, con- 
trary to your duty, refuse to bury, in the churchyard of 
Gedney aforesaid, the corpse of the said Elizabeth Ann 
Cliff, then brought to the said church or churchyard, 
convenient warning having been given you thereof before. 
Sixth. Also we article and object to you, the said Thomas 

Sweet Escott, that the said Elizabeth Ann Cliff, the 
infant aforesaid, died within the said parish of Gedney, 
and that such infant (being the daughter of the said 
Thomas Cliff and Sarah Cliff, his wife, who are Pro- 
testants of the class of people commonly called or known 
as Wesleyan Methodists, and who were, in the months 
of August, September, October, November, and De- 
cember, 1839, and had been, for some time previous 
tiiereto, in the habit of frequenting or resorting to a 
chapel or place of reli^ous worship established by or for 
the use of a congregation of the said class of people 
situate within the said parish of Gedney,) had been 
first, to wit, on or about the 1st day of October, in the 
said year 1839, baptised, according to the rite or form 
of baptism generally received and observed among the 
sud class of people commonly called or known as Wes- 
leyan Methodists, that is to say, with water, and in the 
name of the Father, and of the Son, and of the Holy 
Ghost, by the Reverend Elisha BaUey, a minister, 
preacher, or teacher of the said class of people com- 
monly called or known as Wesleyan Methodists as afore- 
said ; that of the aforesaid fact of baptism you, the said 
Thomas Sweet Escott, were informed, as well on the 
16th day of the said month of December, in the sidd 
year 1839, by the said Thomas Cliff, as on the morning 



THE KOCLESIASTICAL COURTS. 211 

of the 17U1 day of ^the-said month, by the Reverend 
Robert Bond, also a minister of the said dass of people 
commonly called or known as Wesleyan Mediodists, 
when they respectively urged and entreated you^ on 
such two several occasions, to consent to bmy the corpse 
of the said infant, and that by means of such infor- 
mation, as well as by other means, you, the said 
Thomas Sweet Escott, were, previous to and at the 
time of your refusal to bury the said corpse, well and 
sufficiently apprised, and aware of such &ct of bap- 
tism; and that on each of the two several occasions 
aforesaid, as also subsequently, on the said l7th day of 
December, when the corpse of the said infant having 
been brought to the churchyard of the said parish, ap- 
plication was made to you for the burial thereof in the 
said cburchyard, in manner and form prescribed by the 
Book of Common Prayer, you, the said Thomas Sweet 
Escott, did make or assign the aforesaid &ct of bap- 
tism expressly as the pretext or ground of refusing to 
comply with such entreaties and appUcation as aforesaid 
respectively. 

Also we article and object to you, the said Thomas Seventh. 
Sweet Escott, that for such your offence in the preceding 
articles set forth, you ought to be canonically corrected 
and punished; and we article and object as before. 

Also we article and object to you, the said Thomas ^lith. 
Sweet Escott, that you, the said Thomas Sweet Es- 
cott, were, during the said month of December, in 
the year of our Lord 1839, and at present are, vicar 
of the vicacage and parish church of Gedney aforesaid, 
in the county and diocese of Lincoln and province of 
Canterbury ; and therefore, and by reason of the pre- 
mises and of the letters of request under the hand and 

p2 



242 



THB PRACTICE OF 



seal of the Worshipful John Haggard^ Doctor of Laws^ 
Vicar-General of the Right Reverend Father in God, 
John, by Divine permission. Lord Bishop of Lincoln, 
and Official Principal of the Consistorial and Episcopal 
Court of Lincoln lawfully constituted, presented to and 
accepted by us in this cause, and of the appearance given 
for you to the citation by decree issued in this cause, 
were and are subject to the jurisdiction of this court ; 
and we article and object as before. 

Ninth. ^jgQ ^Q article and object to you, the said Thomas 

Sweet Escott, that the said Frederick George Mastin, 
the promoter in this cause, hath rightly and duly com- 
plained of the premises to us, the judge aforesaid, and 
to this court; and we article and object as before. 

Tenth. Also we article and object to you, the said Thomas 

Sweet Escott, that all and singular the premises were 
and are true, public, and notorious, and thereof there 
was and is a public voice, fame, and report, of which 
legal proof being made to us, the judge aforesaid, and 
to this court, we will that you, the said Thoaias Sweet 
Escott, be canonically and duly corrected and punished, 
according to the exigency of the law ; and also be con- 
demned in the costs of this suit, made and to be made, 
on the part and behalf of the said Frederick Greoige 
Mastin, the promoter aforesaid, and compelled to the due 
payment thereof, by our definitive sentence, or final in- 
terlocutory decree, to be read and promulged, or made and 
interposed in this cause ; and fiirther, that it shaU be 
done and observed in the premises as shall be lawful 
and right in this behalf, the benefit of the law being 
always preserved. 



THE ECCLESIASTICAL COURTS. 2*13 



Articles. 

In the name of God, &c. Articles 

We article and object to you, the said Reverend Ro- gyman for 
bert Crawford DUlon, aerk, that by the laws, canons, Pf rfo^iing 

' ^ ^ ' • ' ' Divine ser- 

and constitutions ecclesiastical of this realm, no person vice without 
whatever is publicly to read prayers, preach, administer * ^®^®* 
the holy sacrament of the Lord's Supper, or perform "^ 
any ecclesiastical duties, according to the rites and cere- 
monies of the United Church of England and Ireland, 
in any parish church, chapel, or other place within this 
reahn without a license £rom the bishop of the diocese 
or ordinary of the place, having episcopal jurisdiction for 
that purpose, or without other lawful authority, and that 
you loiow, believe, or have heard, that persons offending 
in the premises are and ought to be duly and canonically 
punished and corrected for the same ; and we article 
and object to you every thing in this and the subse- 
quent articles contained jointiy and severally. 

Also we article and object to you, the said Reverend Second. 
Robert Crawford Dillon, that the said Right Reverend 
Father in God, Charles James, by Divine permission 
Lord Bishop of London, did, by an instrument in 
writing under his hand and seal, and bearing date on or 
about the 29th day of February, in the year of our Lord 
1840, duly revoke a license previously, to wit, on or 
about the 24th day of July, in the year of our Lord 
1829, granted to you by him the said Lord Bishop of 
London, to perform the office of minister of the said 
unconsecrated chapel or building commonly called Char- 
lotte Street Chapel, Pimlico, in the parish of Saint 



214 THB PRACTICE OF 

George, Hanover Square^ in the county of Middlesex, 
and in the diocese of London, and did recall the autho- 
rity given to you by such license to perform the said 
office of minister of the chapel or building aforesaid, 
and did strictly enjoin and command you thenceforth to 
abstain from further performing the office of minister of 
the chapel or building aforesaid, and from officiating 
therein, and that such instrument of revocation was 
duly served upon you on the said 29th day of February? 
and we article and object to you as before. 
Third. Also we article and object to you, the said Reverend 

Robert Crawford Dillon, that, in supply of proof of the 
premises in the next preceding of these articles con-> 
tained, the promoter of our office prays leave to refer to 
the ori^al instrument of revocation of the said license 
previously granted to you as before mentioned, which 
instrument of revocation was, on or about the 2nd day 
of March last past, brought into and now remains in 
our registry of the said Consistorial Episcopal Court of 
London, with a certificate endorsed thereon^ signed by 
WiUiam Henry Willett, of the personal and due service 
thereof on you, the said Robert Crawford Dillon, on 
Saturday, the said 29th day of February last past, and 
we further article and object to you, that Robert Craw- 
ford Dillon mentioned in the said original mstrument of 
revocation, and you, the said Robert Crawford Dillon, 
the party against whom our office is promoted in this 
cause, were and are the same person, and not divers ; 
and that Charlotte Street Chapel, Pimlioo, mentioned 
in ihe said instrument of revocation, and the aforesaid 
unconsecrated chapel or building, commonly called 
Charlotte Street Chapel, Pimlico, several times men- 



THE ECCLESIASTICAL OOURTS. 215 

tioned in these artidesj was and is one and the same 
chapel or building, and not divers ; and we article and 
object to yon as before. 

Also we article and object to yon^ the said Reverend Fourth. 
Robert Crawford Dillon^ that the letters <' C. J/' and the 
word ^London/' written in the maigin of the said original 
instminent of revocation^ mentioned in the two next 
preceding of these articles, were and are respectively the 
initials and episcopal title, and were and are of the pro- 
per handwriting and subscription of the said Right 
Reverend Father in God, Charles James, by Divine 
permission Lord Bishop of London, and are so well 
known or beUeved to be by divers persons of good fiiith 
and credit, who by having frequently seen him write are 
thereby, or otherwise, well acquainted with the manner 
and character of his handwriting, and that the impres- 
sion of a seal in the margin of the said original instru- 
ment of revocation is the impression of the episcopal 
seal of the said Lord Bishop of London, and is so well 
known to be by divers persons of good credit; and we 
article and object to you as before. 

Also we article and object to you, the said Reverend Fifths 
Robert Crawford Dillon, that, notwithstanding the pre- 
mises, you did on Sunday, the Ist day of March, 1840, 
take upon you publicly to read prayers, preach, admi- 
nister the holy sacrament of the Lord's Supper, and 
perform ecclesiastical duties and divine offices, accord<^ 
ing to the rites and ceremonies of the United Church of 
England and Ireland, in the said unconsecrated chapel 
or building, commonly called Charlotte Street Chapel^ 
Pimlico, in the said parish of Saint George, Hanover 
Square, in the county of Middlesex, and in the diocese 
<^ London aforesaid, without any license or lawful an- 



216 THE PRACTICE OP 

thoiity for so doing, and contrary to, and in defiance of, 
the aforesaid injunctions of the said Lord Bishop of 
London ; and we article and object to you as before. 

Sixth. Also we article and object to you, the said Reverend 

Robert Crawford Dillon, that, notwithstanding the pre- 
mises in the first, second, and third preceding articles 
objected to you, you did on Sunday, the 8th day of 
March, 1840, and also on Sunday, the 15th day of 
March, 1840, and also on Sunday, the 22d day of 
March, 1840, and also on Sunday, the 29th day of 
March, 1840, all, or some of them, take upon you 
publicly to read prayers, preach, and perform ecclesias- 
tical duties and divine offices, according to the rites and 
ceremonies of the United Church of England and Ire- 
land, in the said unconsecrated chapel or building, com- 
monly called Charlotte Street Chapel, Pimlico, in the 
parish and diocese aforesaid, without any license or 
lawful authority for so doing, and contrary to, and in 
defiance of, the aforesaid injunctions of the said Lord 
Bishop q( London ; and we article and object to you as 
before. 

Seventh. Also we article and object to you, the said Reverend 

Robert Crawford Dillon, that since you have been 
served with a citation issued under seal of this Court in 
this cause, and without any regard thereto, you have 
continued, and do still continue, publicly to read prayers> 
preach, and administer the holy sacrament of the Lord's 
Supper, and perform ecclesiastical duties according to 
the rites and ceremonies of the United Church of Eng- 
land and Ireland, in the said unconsecrated chapel or 
building, commonly called Charlotte Street Chapel, 
Pimlico, in the parish and diocese aforesaid, without 
any license or lawful authority for so doing, and con- 



THE ECCLESIASTICAL COURTS. 217 

trary to and in defiance of the injunctions of the said 
Lord Bishop of London; and we article and object of 
any other time or times as shall appear from the lawful 
proofis to be made in this cause; and we article and 
object to you as before. 

Also we article and object to you, the said Reverend Eighth. 
Robert Crawford Dillon, that you are a priest or minister 
in holy orders of the United Church of England and 
Ireland^ and reside within the parish of Saint Oeorge, 
Hanover Square, in the county of Middlesex and 
diocese of London, and therefore and by reason of the 
premises, were and are subject to the jurisdiction of 
this court. 

Also we article and object to you, the said Reverend Ninth. 
Robert Crawford Dillon, that of and concerning all and 
singular the premises it hath been and is rightly and 
lawfully complained to us and to this court; and by 
reason thereof it is lawfully and duly articled against 
you as before. 

Also we article and object^ &c. Tenth. 



e 
nt 



Articles against Laymen. 

In the name of Ood, amen. We, John Nicholl, Articles 

Knight, Doctor of Laws, Dean or Commissary of the against ahiy- 

Deanery of the Arches, London, Shoreham and Croydon, ventine th 

the peculiar and immediate jurisdiction of the Cathe- ^^"eiulr!. 

dral and Metropolitical Church of Christ, Canterbury, cismg the 

lawfully constituted to you, Alexander McMath, of die chairman 

parish of Saint Mary Aldermary, London, in the ^^' 
deanery of the Arches, London, and peculiar jurisdiction 
aforesidd, all and singular the articles, heads, positions, 
or interrogatories, hereunder written or hereinafter 



218 THE PRACTICE OF 

mentioned^ touching and concerning your souFs heallih ^ 
and the lawful correction and reformation of your man- 
ners and excesses^ and more especially for interrupting 
the Reverend H. B. Wilson^ Doctor in Divinity, the 
Rector of the said parish of Saint Mary Aldennary, 
when he had taken the chair as president at a vestry 
meeting, held in the vestry-room within the walls of the 
parish church of Saint Mary Aldermary, aforesaid, pre- 
venting him from exercising the office of chairman or 
president of the said vestry meeting, and dispossessing 
him thereof, do by virtue of our office, at the voluntary 
promotion of the said Reverend H. B. Wilson, Doc- 
tor in Divinity, aforesaid, object, article, and admi- 

Fint nister, as follows, to wit. 

We article and object to you, the said Alexander 
McMath, that for these ten, twenty, thirty, forty, fif^y, 
or sixty years last past and for time immemorial, 
and long beyond the memory of any man now living, 
there hath been and stiU is a parish and parish church 
called and known by the name of Saint Mary Alder- 
mary, London, in the deanery of the Arches, London, 
and peculiar and immediate jurisdiction of the Cathe- 
dral and Metropolitical Church of Christ, Canterbury, 
and this was and is true, public, and notorious; and we 
article and object every thing in this and the subse- 

Second. quent articles contained jointly and severally. 

Also we article and object to you, the said Alexander 
McMath, that the said Reverend H. B. Wilson, Doctor 
in Divinity, being then a priest or minister in Holy 
Orders of the Church of England, was in or about the 
month of August, in the year of our Lord 1816, duly 
collated, instituted, and inducted in and to the rectory 
of Saint Mary Aldermary, London, aforesaid, and hath 
ever since been and now is the lawful rector of the said 



THE ECCLESIASTICAL COVRTS. 219 

parish^ with all fhe rights^ members^ and appurtenances 
thereunto belonging or in any wise appertaining by the 
law^ statutes^ canons^ and constitutions ecclesiastical of 
the realm^ and this was and is true^ public, and noto- 
rious; and we article and object as before. 

Abo we article and object to you^ the said Alexan* Third 
der McMath, that at a vestry held for the parish of Saint 
Mary Aldermary, London aforesaid, in the vestry-room 
of the said parish, which is within and part of the 
parish church of Saint Mary Aldermary aforesaid, on 
Tuesday, the 16ih day of March, now last past, in 
the present year of our Lord 1819, the said Reve^ 
rend H. B. Wilson, Doctor in Divinity, the promoter 
of our office in this cause, Nathaniel Anger, one of the 
theti churchwardens, John Hamman, John Custance^ 
William Grove, Thomas Chandler, you, the said Alex-^ 
ander McMath, and several other of the parishioners 
and inhabitants of the said parish, being then present, 
you, the said Alexander McMath, not regarding the sa- 
credness of the place nor the honour and estimation due 
to the said Reverend H. B. Wilson, when he had taken 
the chair as president of the said vestry meeting, did 
prevent the said Reverend H. B. Wilson from exer- 
cising the office of chairman or president of the said 
vestry meeting, and did dispossess him thereof in the 
indecent and unbecoming manner following, to wit : that 
the said vestry meeting having been held pursuant to 
notice duly given in the said church on the Sunday pre- 
ceding, the said Reverend H. B. Wilson attended the 
same, as had been his constant practice ever since he 
had become rector of the said parish, as aforesaid, and 
at the appointed and usual hour took his place at the 
north end of the table in the said vestry-room as chair- 



220 THE PRACTICE OF 

man or president of the said meeting, being the usual 
and accustomed place for that purpose. That William 
Greve^ one of the parishioners present as aforesaid, said, 
^^ I move Mr. McMath to take the chair;^' that you, the 
said Alexander McMath thereupon took your station at 
the office end of the said table, and assumed the right of 
acting there as chairman or president of the said meet- 
ing; that the same being objected to by the said Reve- 
rend H. B. Wilson^ and insisted upon by you, the said 
Alexander McMath, much conversation thereupon 
ensued, in the course of which the said Thomas Chand- 
ler said — ^' I see no use in so much talking, it would be 
better to turn the rector out of the chair/' or to that or 
the like effect; that the said Reverend H. B. Wilson, 
with a view to put an end to such conversation, desired 
the minutes of the last vestry meeting to be read by the 
vestry clerk, whereupon the vestry clerk, or a person 
officiating for him, quitted his customary place by the 
side of the rector, and went and read the said minutes 
by the side of you the said Alexander McMath; and 
the reading being finished^ you, the said Alexander 
McMath interrupted the said Reverend H. B. Wilson, 
when he was preceding to put the question, which you 
yourself did^ and the said Reverend H. B. Wilson 
thereupon, and to avoid further contention, retired from 
the room, and that you thereby dispossessed the said 
Reverend H. B. Wikon of the office of diairman or 
president of the said vestry meeting, in manifest viola* 
tion of the laws^ statutes, canons, and constitutions 
ecclesiastical of this realm, and what.is fitting and right 
to be observed and of custom is observed in and through- 
out the whole realm touching and concerning the pre- 
mises, and to the evil example of others ; and this was, &c. 



THE BCCLSSIASTICAL COURTS. 221 

Also we article and object to you^ the said Alexander Fourth. 
McMath^ that you you were and at present are of the 
parish of Saint Mary Aldermary, London^ in the 
Deanery of the Arches^ London^ and peculiar and im- 
mediate jurisdiction of the Cathederal and Metropoli- 
tical Church of Christy Canterbury, and therefore 
manifestly subject to the jurisdiction of this court, and 
that by reason of the premises set forth in the next 
preceding article, you have incurred ecclesiastical cen- 
sure and have not as yet undergone any punishment for 
the same; and this, &c. 

Also we article and object to you, the said Alexander Fifth. 
McMath, that it hatli been and is rightiy and duly 
complained by or on the part and behalf of the said 
Reverend H. B. Wilson, Doctor in Divinity, the pro- 
moter in this cause, of and concerning all and singular 
the premises to us, the Dean or Commissary aforesaid, 
and to this court; and this was, &c. 

Also we article and object to you, the said Alexander Sixth. 
McMath^ that all and singular the premises were and 
are true, public, and notorious, of which legal proof 
being made, the party promonent prays right and jus- 
tice to be effectually done and administered in the pre- 
mises, and that you may be duly, and according to the 
exigency of the law, pimished and corrected for your 
excess and temerity in the premises, and admonished to 
refrain from the like behaviour for the future, and also 
that you may be condemned in the costs of this suit 
made and to be made on the part and behalf of the said 
Reverend H. B. Wilson, Doctor in Divinity, the pro- 
movent, and compelled to the due and effectual pay- 
ment thereof. 



k 



282 



THE PRACTICE OP 



brawling. 
First 



Articles. 
Articleg In the name of God, amen, &c. 

ftff&inst ft l&V"" 

man for We article and object to you, the said George Clark- 

son, that by the laws, statutes, and canons eodetnastical 
of this realm, all and every the parishioners and inhabi- 
tants of and within every parish within the said reahn, 
and all other persons whatsoever, ought, when they 
repair to their parish church, or any other church or 
chapel, upon any occasion whatever, to demean him, 
her, or themselves orderly, soberly, peaceably, and 
reverently therein, as becometh the house of God, and 
not to chide, brawl, scold, quarrel, or make any dis- 
turbance whatever therein, upon pain of ecclesiastical 
censure, to be inflicted according to the offence, and we 
refer to the said laws, statutes, canons, and constitu- 
tions ecclesiastical; and this was and is true, public, 
and notorious, and we artide and object to you every- 
thing in this and tiie subsequent articles contained 
jointiy and severally. 

Also we article and object to you, the said George 
Clarkson, that in and by an Act of ParlijEiment passed 
in the fifth and sixth years of the reign of Edward the 
Sixth, some time King of England, it is enacted in the 
words following, to wit, " that if any person whatsoever 
shall at any time after the first day of May next ensu- 
ing, by words only, quarrel, chide, or brawl in any 
church or churchyard, then it shaU be lawful unto the 
ordinary of the place where the same offence shall be 
done and proved by two lawful witnesses, to suspend 
every person so offending, that is to say, if he be a 
layman, ab ingressu ecclesia ; and if he be a clerk, from 



Second. 



THS ECCLB8IA8TICAL COURTS. 223 

the ministralion of his office for bo long time as the 
said ordinary shall, by his discretion, tiiink meet and 
convenient, according to the £uilt f^ and we article and 
object the said Act of Parliament to be a public act; 
and this was and is true, and we article and object as 
before. 

Also we article and object to you, the said George Third. 
Clarkson, tiiat in the afitemoon of Sunday, tiie 7th day 
of May, in the year of our Lord 1826, and during the 
time of Divine service in the parish church of the 
palish of Minster aforesaid, you the said George Clark- 
son did disturb the congregation then and tiiere assem* 
bled in nuumer and form following, that is to say : you 
the said George Clarkson did, at and during the per- 
formance of Divine service as aforesaid, in the said 
church, and in the face of the said congregation then 
and there assembled, hand or otherwise present to Wil- 
liam Champion, the parish clerk of the said parish, a 
written notice, for the purpose of him the said William 
Champion reading tiie same aloud in the same church 
previous to the commencement of the sermon, which 
notice was in the words or to the effect following, that 
is to say, ^^ Kent. Parish of Minster, in tiie Isle of 
Sheppy, 6th May, 1826. Notice is hereby given, that 
a vestry meeting will be holden in the parish church on 
Thursday, the 11th instant, at four o^clock in the after- 
noon, for the special purpose of taking into considerar 
tion the best means of resisting the proceedings which 
have been adopted for the recovery of Easter offerings 
in the parish, and preventing similar proceedings in 
future. — Edward Biggs, Churchwarden; Geobgb 
Clarkson, Overseer ;'^ — that the said William Cham- 
pion, upon the said notice being by you handed or 



224 THE PRACTICE OP 

presented to him^ for him to read the same aloud as 
aforesaid^ commmiicated the same to the Reverend 
Henry Tannine, Clerk^ the Perpetual Curate of the 
said parish^ who was then and there actually engaged 
in the performance of Divine service to the said con- 
gregation then and there assembled as aforesaid^ where- 
upon the said Reverend Henry Turmine, who had 
received no previous intimation of or respecting any 
such notice^ directed the said William Champion not to 
read the same^ and in consequence thereof the said 
William Champion did not read aloud the said notice 
at and during the time of Divine service as by you 
required as aforesaid ; and we further article and object 
that you^ the said George Clarkson^ did thereupon, 
after the sermon, but previous to the said Reverend 
Henry Turmine, Clerk, having left the pulpit, and 
before the congregation then and there assembled had 
left the said church after the conclusion of the same, 
stand upon the seat of your pew, and not regarding the 
sacredness of the place where you were, and without 
any lawful authority whatever, did then and there 
yourself commence reading aloud a notice, in the words 
or to the precise effect of the written notice before 
recited, and read the said notice aloud to the conclu- 
sion of the same, and did thereby irreverentiy and 
indecentiy chide and brawl by words, in the presence 
and hearing of the minister and congregation assembled 
in the said church* as aforesaid ; and did, by so handing 
or otherwise presenting the said notice to the said 
William Champion, the parish clerk, for the purpose 
of reading tiie same aloud as aforesaid, and afterwards 
by yourself reading the same aloud as aforesaid, create 
a great dbturbance in the said church, and give great 



THE ECCLESIASTICAL COURTS. 225 

oiFence to the said congregation then and there assem- 
bled^ and you the said Oeorge Clarkson did then and 
there irreverently demean and express yourself^ as or to 
the purport and effect aforesaid^ in violation of the 
laws, statutes, canons, and constitutions ecclesiastical 
of this reahn ; and this was, &c. 

Also we article and object to you, the said George Fourth. 
Clarkson, in part supply of proof of the premises in the 
next preceding article mentioned and set forth, and we 
exhibit and hereto annex, and will to be here read and 
inserted, and taken as part and parcel hereof, a certain 
paper writing, marked with the letter A; and we article 
and object the same to be and contain the very notice 
so as in the said article set fortih, handed, or otherwise 
presented by you to the said William Champion, in the 
parish church of Minster aforesaid; and we further 
article and object, that the words and names '^ George 
Clarkson, Overseer,^' set and subscribed to the said 
notice, were and are of the proper handwriting of you 
the said Oeorge Clarkson, and are so known or 
believed to be by divers persons of good credit and 
reputation, who have frequently seen you write, and 
also write and subscribe your name, and that George 
Clarkson who so subscribed the said notice, and you 
the said George Clarkson, the party in this cause, were 
and are the same person and not divers; and this 
was, &c« 

Also we article and object to you, the said George Fifth. 
Clarkson, that you are a layman, of Sheemess, in the 
parish of Minster, in the island of Sheppy, county of 
Kent, and diocese of Canterbury aforesaid, and there- 
fore, and by reason of the premises and of the letters 
of request presented to and accepted by us in this 



226 THE PRACTICE OF 

cause^ were and jure subject to the jurisdiction of this 
court; and have not yet undergone any punishment for 
the same ; and this^ &c« 

Sixth. Also we article and object to you, the said George 

Clarkson, that the said Reverend Henry Turmine, 
Clerk, the promoter of our office, was, at the time in 
the third of these articles pleaded, and now is, perpe- 
tual curate of the parish of Minsta', in the island of 
Sheppy, county of Kent, and diocese of Canterbmy, 
and has rightly and duly complained to us the judge 
aforesaid and to this court ; and this, &c. 

Seventh. Also we article and object to you, the said George 

Clarkson, that all and nngular the premises were and 
are true, public, and notorious, and thereof there was 
and is a public voice, &me, or report, of which legal 
proof being made to us the judge aforesaid, and to this 
court, we will that you the said Geoi^ Clarkson, for 
your excess and temerity in the premises, be pro- 
nounced, decreed, and declared to have committed an 
offence against the ecclesiastical laws of the realm, and 
to have incurred the penalty of the aforesaid statute 
and the censure of the law, and that you be duly, and 
according to the exigency of the law, corrected and 
punished for the same, and admonished to refrain from 
the like behaviour for the future, and also that you be 
condemned in the costs made and to be made on the 
part and behalf of the said Reverend Henry Turmine, 
and compelled to the due payment thereof. 



THE ECCLESIASTICAL COURTS. 22/ 



Articles* 

In the name of God, amen^ &c. Articles 

We article and object to you^ the said A. fi., that for S^an for 
these ten, twenty, thirty, forty, fi%, and sixty years poUingdown 
past, and from time immemorial, and long beyond the churchyard, 
memory of any man now living, there hath been and Pint. 
now is a parish and parish church for the use of the 
parishioners and inhabitants of the said parish, called 
and known by the name of Saint in 

within the diocese of , and that there hath 

also been and now is a churchyard of and belonging to 
the said parish church, which churchyard abuts, on the 
north, upon lands belonging to you the said A.B., 
whereon a tenement formerly stood which formed the 
northern boundary or fence of the said churchyard, but 
which tenement, many years since, was pulled down, 
and a wall formed or erected on the line of such boun« 
dary or fen^; and this was and is true^ public^ and 
notorious, and we article and object to you the said 
A.B. everything in this and the subsequent articles 
contained jointly and severally* 

Also we article and object to you, the said A. B., Second, 
that in the year 1579 a terrier was had and made of all 
such lands as did appertain unto the parsonage and 
parish of Saint aforesaid, and such terrier 

was entered in a certain book of terriers, made in or 
about the said year 1579, which is deposited and 
remains on record in the Registry of tiie Consistorial 
and Episcopal Court of ^ and that in such 

terrier it is mentioned and set forth that there was 
appertaining unto the said parish the churchyard, being 

q2 



828 



TH£ PRACTICE OF 



Third. 



Fourth. 



the same churchyard pleaded in the next preceding 
article ; and this was and is true^ &c. 

Also we article and object to you^ the said A. B.^ and 
in part supply of proof of the premises in the next pre- 
ceding article mentioned^ and to all intents and pur- 
poses in the law whatsoever^ exhibit and hereto annex^ 
and will that the same be here read and inserted^ and 
taken as part and parcel hereof^ a certain paper writings 
marked No. 1$ and we article and object to you^ the 
said A. B.^ that the same is and contains a true copy 
of the said terrier in the next preceding article men- 
tioned; that the same hath been faithfully extracted 
from the aforesaid book of terriers^ now remaining in 
the K^;btry of the Consistorial and Episcopal Court 
of 5 and hath been carefully collated with 

the original terrier therein and found to agree ther&* 
with ; and that the said book will be produced at the 
examination of the witnesses in this cause, and at the 
hearing thereof, if required ; and this, &C 
:.. Also we article and object to you, the said A*J3.> 
that the aforesaid wall, which formed the northern 
boundary or fence of the said churchyard, has been 
lately, to wit, in or about the month of February, in 
the present year, 18 , pulled down and removed by or 
by the direction of you the said A« B., whereby the said 
churchyard hath been laid open to a certain piece or 
parcel of land belonging to you the said A. B., whereon 
the said messuage or tenement which heretofore, as 
aforesaid, formed the northern boundary of the said 
churchyard, formerly stood, by which means the said 
churchyard is desecrated, and the graves and tomb- 
stones therein are subject to mutilation and destruc- 
tion ; and this, &c. 



THB BCCLE8IA8TICAL COURTS. 229 

Also we article and object to you, the said A. B.^ Fifth. 
that at a yisitation of the Venerable E. F., Doetor in 
Divinity, Archdeacon of the archdeaconry of , 

held in the cathedral chnrch of , on or about 

the 15di day of May, in the present year of our Lord, 
the said C. D., the churchwarden of the said parish of 
Sunt , did make a pres^itment to the said 

archdeacon, in which, amongst odier things, he pre- 
sented that the said northern boundary or fence of the 
said churchyard had been wholly removed, by or by tiie 
directions of you, the said A. B., and that the said 
churchyard was desecrated, and the graves and tomb- 
stones therein were subject to mutilation and destnio* 
tion, by reason of the deficiency of the said northern 
fence or boundary ; and this was, &c. 

Also we article and object to you, the said A. B., aind sixth. 
in part supply of proof of the premises in the next pre- 
ceding article mentioned, exhibit and hereto annex, and 
will tiiat the same be here read and inserted, and-^ taken, 
as part and parcel hereof, a certain paper wriHng,' 
marked No. 2 ; and we article and object to you, that 
the same is and contains a true and correct copy of the 
aforesaid presentment in writing, mentioned in the next 
preceding article; that the same hath been carefully 
collated with the original^ remaining in tiie Registry of 
the Archidiaconal Court of , and found to 

agree therewith, and that the said original presentment 
will be produced at the examination of the witnesses in 
this cause, and at the hearing thereof if required ; that 
all and singtdar the contents thereof were and are true^ 
and that A.B. therein mentioned, and you, the said 
A. B., were and are one and the same person, and ncyt 
divers ; and this, &c. 



230 THE PRACTICE OF 

Seventh. Also we artddB and object to you^ the said A*B.^ 

that on or about the l7th day of June, m this present 
year^ the said C. D., as churchwarden of the parish 
and parish church of Saint aforesaid^ gave 

notice, in writing, to you the said A.B, to erect an(} 
build, within one month, calendar month, from the said 
day of the date of the said notice, a good and substantial 
wall or fence, upon the line of the aforesaid ancient boun* 
dary or fence, of a proper and sufficient height, in lieu 
and stead of the wall so pulled down and removed by 
you or by your direction as aforesaid, and did also 
further give you notice in writing that, in case you 
neglected or refused so to do, within the time aforesaid, 
then that, at the expiration thereof, he, the said C«D,, 
would take sudi proceedings against you, to compel 
you so to do, fts the law might direct or require, which 
notice was personally served upon or sufficiently made 
known to you ; but that, notwithstanding such notice 
fMud repeated requests to the same effect you tibe said 
A*Bf have neglected to restore the wall which you 
have caused to be pulled down, or to erect and build 
any waU or fence between the said churchyard and 
your aforesaid lands, and the said churchyard conti* 
nues subject to desecration as before mentioned $ and 
this, &c* 

Eighth. ^^ we article and object to you, the said A. B., 

that the said C J)., the party promoting this cause^ was, 
on or about the day of , duly 

admitted into the office of churchwarden of the said 
parish of Saint in the city of 

for one whole year from thence next ensuing, having 
been duly elected to the said office, and having made 
the usual declaration required by law, and for and as 



THE ECCLESIASTICAL COURTS. 231 

churchwarden of the said parish was and is commonly 
acoomited^ reputed and taken to be; and this was^ &c. 

Also we article and object to you^ the said A.B.^ Ninth. 
that you were and are of the said city and diocese 
of ^ and therefore and by reason of the 

premises were and are subject to the jurisdiction of 
this court; and this^ &c. 

Also we article and object to you^ the said A«B«^ Tentb. 
that the said C.D.^ the party promoting this cause^ hath 
n^dy and duly complained of and concerning all and 
singular the premises, to us, the vicar-general, and 
official principal aforesaid, and to this court; and this, &c« 

Also we article and object to you, the said A»B., Eleventh. 
that all and singular the premises were and are true, 
public, and notorious, and hereof there was and is a 
public voice, fame, and report, of which legal proof 
being made, we will, that right and justice be effectually 
done and administered therein, and that you, the said 
AJ3«, be by canonical censures monished to restore the 
said wall so as aforesaid pulled down by you or by 
your direction, or to erect and build a good and sub* 
stantial wall or fence of a proper and convenient 
height, upon the line of the ancient northern boundary 
or fence of the said churchyard, in lieu and stead 
of the wall pulled down and removed by you or by your 
directions as aforesaid, and be condemned in all the 
lawful costs made and to be made in this cause, on the 
part and behalf of the said CD*, by us, or our definitive 
sentence or final decree to be made and interposed in 
this behalf. 



232 THE PRACTICE OF 



Articles. 

^^^nsT ^^ ^^ '^*"*® ^^ ®^' amen, &c. 

church- We article and object to you, the said John Homer 

neglecting to ^^^^^^^ and John Philpot, that for these ten, twenty, 
'®P*'^ * thirty, forty, fifty, sixty years last past, and for time 
p.^^ * immemorial and long beyond the memory of any man 

now living, there hadi been and still is a parish and 
parish church for the use of the parishioners and inha- 
bitants called and known by the name of Saint Mary 
Thackstead, otherwise Thaxted, in the county of 
Essex, within the archdeaconry of Middlesex, and 
diocese of London, with, at the west-end appendant to 
or forming part thereof, a tower, and that during all 
the times aforesaid, and until the 15 th day of June and 
the 16th day of December, in the year 1814, when the 
same was blown or fell down, or was destroyed in 
manner as hereinafter set forth, there was a spire built 
on and firom the said tower, with a vane on the top of 
the said spire; and this, &c. 
Second. Also we article and object, &c», tiiat the said church, 

tower, and spire, were all built of freestone, and of 
uniform style or character of architecture; that from 
the summit of the vane of the said spire to the ground 
floor of the said tower was a perpendicular height of 
about sixty yards and one foot; the height from the 
spring of the said spire from the tower, to the top of the 
vane forming thirty-three yards one foot of such whole 
height. That on the 15th day of June, in the year 1814, 
the upper part of the said spire, to the extent of about 
forty feet from the top, was injured by lightning; that 
the churchwardens, parishioners, and inhabitants of the 



THE ECCLESIASTICAL COURTS. 

said parish^ undertook the repairs thereof, and for that 
purpose raised a sca£Fold, but did not complete the 
necessary repairs before the i^inter came on, and left 
the said scaffold standing, that by ihe effect of the 
we^ht of the said scaffold, and of the snow and ice 
which had been suffered to accumulate thereon^ or of 
certain defects which had taken place in the said tower, 
on the 16ih day of December, in the said year, the 
remainder of the said spire, to within twenty-five feet of 
its junction with the said tower, was blown or fell down 
upon the roof of the said church, and mudi injured the 
same and the body of the said church; that the 
churchwardens, parishioners, and inhabitants, have duly 
repaired the body and roof of the said church, but 
have refused or n^lected to rebuild, reinstate, or repair 
the said spire, although thereunto duly admonished at 
the aichidiaoonal visitation of the said parish, and often 
thereunto intreated and requested by or on behalf of 
the said Right Honourable Charles Viscount Maynard, 
Baron of Estaines, the patron of the said church, and 
impropriator of the great tithes of the said parish, and 
a proprietor therein as aforesaid, in manifest violation 
of the laws, statutes, canons, and constitutions ecclesias- 
tical of this realm, and what is fitting and right to be 
observed, and of custom is observed, touching and con- 
cerning the premises, and to the evil example of 
others; and this, &c« 

Also we article and object to you, the said, &c. and Third, 
in part supply of proof of the premises in the next pre- 
ceding article objected and set fordi, and to all other 
intents ai^d purposes in the law, whatever, exhibit here- 
unto, annex, and will the same to be here read and 
inserted, and taken as part and parcel hereof, a certain 



233 



234 THE PRACTICE OF 

print or engraving marked with the letter A; that the 
same b and contains a true and correct representation 
of the said church, tower, and spire, and of the style or 
character of their build or architecture, as the same 
stood prior to the accident occurring to the said spire 
on the 15th day of June, 1814, and the 16th day of 
December in the said year, as in the said article is 
objected and set forth, with, at the lines drawn across 
the said spire, a true and correct representation of the 
parts which fell down, or were destroyed at each of the 
said times; and this, &c. 

Fourth. Also we article and object to you, &c. that you were 

and at present are churchwardens and parishioners and 
inhabitants of the parish of Saint Mary, Thackstead, 
otherwise Thaxted, in the county of Essex, and diocese 
of London, and therefore manifestly subject to the 
jurisdiction of this court; and that by reason of the 
premises set forth in the next preceding articles, you 
have incurred ecclesiastical censure, and have not as 
yet undergone any punishment for the same, and are 
legally bound and compellable to rebuild, reinstate, or 
repair the said spire of the said church; and this, &c. 

Fiflh. Also we article and object, &c. that it hath been and 

was and is rightly and duly complained by or on the 
part and behalf of the said Right Honourable Charles 
Viscount Maynard, Baron of Estaines, at the Mount in 
the county of Essex, the patron or person having the 
advowson pf the said church of Saint Mary, Thaxted, and 
impropriator of the great tithes of the said parish, and 
also a proprietor therein, the promoter in this cause, of 
and concerning all and singular the premises to us the 
vicar-general and official principal aforesaid, and to this 
court; and this, &c. 



THE BCCLBSIASTICAL COURTS. 235 

Also we article and object, &c. that all and singular Sixth. 
the premises were and are tme^ public^ and notorious, 
of which l^;al proof being made^ we will that right and 
justice be effectually done and administered in the pre^ 
mises^ and that you may be duly, and according to the 
exigency of the law, punished and corrected for your 
excess, temerity, and neglect in the prenuses, and 
admonished to refirain from the like behaviour for the 
future, and to rebuild, reinstate, or repair the said spire 
of the said parish church of Samt Mary, Thackstead, 
otherwise Thaxted, aforesaid, and also that you may be 
condemned in the costs of this suit, made and to be 
made on the part and behalf of the said Right Honour- 
able Charles Lord Yiscoimt Maynard, the promovent, 
and compelled to the due and effectual rebuilding, rein- 
statang, or repairing the said spire, and payment of the 
sud costs by us the vicar-general and official principal 
aforesaid and our office in that behalf. 

Articles. 

In the name of God, amen, &c. Articles 

We article and object to you, the said Job Cooper and ^^h- 
Charles Wainwright, jointly and severally, that at or wardena for 
shortly after Easter, in the present year 1839, you to provide 
were respectively elected and chosen as churchwardens of ^^^ f^ 
the parish of Shepton Mallett, in the county of Somer- the Holy 
set, to wit, you, the said Job Cooper, by and on behalf ^j^^ 
of the parishioners of the said parish, and you the said First 
Charles Wainwright, by and on behalf of the said 
Reverend William Provis Trelawny Wickham, the 
minister of the said parish, and you respectively 
accepted such office and made a declaration that you 



236 



THE PRACTICS OF 



Second. 



Third. 



Fourth. 



would faithfiilly and diligently perform fihe duties 
thereof; and we further article and object to you the 
said Job Cooper and Charles Wainwright, jointly and 
severally^ that at Easter aforesaid^ or shortly afterwards, 
you respectively entered upon the execution of the said 
office, and have ever since respectively acted as church- 
wardens of the said parish, and for and as such church- 
wardens were and are commonly accounted, reputed 
and taken to be; and this, &c. 

Also we article and object to you, the said Job 
Cooper and Charles Wainwright, and to each of you, 
that by the laws, statutes, canons, and constitutions 
ecclesiastical of this realm, and more especially by the 
20th canon of 1603, the churchwardens of every parish, 
against the time of every communion, are required at 
the charge of the parish to provide a sufficient quantity 
of bread and wine for the communicants, under pain of 
ecclesiastical censures to be infficted, and we refer to 
the said laws, statutes, canons, and constitutions eccle- 
siastical; and this was, &c., and we article and object 
as before. 

Also, &c., that notwithstanding the premises set 
forth in the next preceding article, you have on one 
or more occasions refused or neglected to provide bread 
and wine at the chaise of the parish, against the time 
of the Holy Communion, when duly advised and di« 
rected so to do; and, &c. 

Also, &c., that it having been intended by the minis- 
ter of the said parish of Shepton Mallett, to administer on 
Sunday, the third day of November, in the present year 
1839, the sacrament of the Holy Communion in the 
church of the sidd parish, he the said minister gave 
public notice of such his intention, to wit, on the pre- 



THE BCCLE8IA8TICAL COURTS. 287 

vioos Sunday in the said pariah church; and we further 
article^ 8tc., Uiat you were respectively cognizant of such 
intention of the said minister^ to administer the Holy 
Communion^ on Sunday;, the third day of the said 
month of November as aforesaid^ and of the aforesaid 
previous public warning given thereof as aforesaid^ and 
moreover that you were respectively desired and re* 
quired by tiie said Reverend William Previa Trelawny 
Wickham^ or on his behalf^ to provide a sufficient 
quantity of bread and wine against such Holy Commu- 
nion; and^ &c. 

Also^ &a^ that you have respectively admitted and Fifth. 
confessed that you^ and each of you^ were fully aware 
that it was the intention of the minister of the said 
parish of Shepton Mallett to administer the Holy 
Communion in the said parish churchy on Sunday^ the 
third day of the month of November^ as aforesaid; and 
also tiiat previous warning had b^n. publicly given in 
the said parish dburch as aforesaid^ by the minister of 
the said parish^ of his intention to celebrate and admi- 
nister the Holy Sacrament; and, &c. 

Also &c«, we exhibit &c.^ three paper writings marked Sixth. 
A, B, and C, and we do article and object the said 
paper writing marked A, to be and contain a true copy 
of a certain letter or notice written^ addressed^ and sent 
tp you and each of you as churchwardens of the said 
parish of Shepton Mallett, by the said Reverend Wil- 
liam Provis Trelawny Wickham, as rector of the said 
parish^ and which letter or notice was^ to wit on or 
about the 30th day of the said month of October, 1839, 
being the day of the date thereof, duly delivered to and 
received by you and each of you. And we do further 
article and object the said paper writing marked B, to 



238 



THE PRACTICE OP 



be an original note or letter written, addressed, and 
sent, on or about the said 30th day of October, 1839, 
by you, the said Job Cooper, to Mr. F. 
Byrt, the clerk of the said parish, being in answer or 
referring to the aforesaid letter or notice of the said 
William Provis Trelawny Wickham. And we do fur- 
ther article and object the said paper writing marked C, 
to be an original letter, written, addressed, and sent by 
you the said Charles Wainwright, the same being also in 
answer to or referring to the said letter or notice of the 
said Reverend William Provis Trelawny Wickham, and 
that the said two paper writings were duly received by 
the said F. Byrt; and this, &c. 

Seventh. Also^ ficc., that the whole body, series, and con- 

tents of the said paper writing or exhibit B, and 
the subsciiption thereto, and the superscription 
thereon^ were and are of the proper hand- 
writing and subscription of you, the said Job Cooper, 
and are so weU known or believed to be by divers 
persons of good credit and reputation who have fre- 
quently seen you, the said Job Cooper, write, and write 
and subscribe your name, and that the whole body, 
series, and contents of the said paper writing or exhibit 
C, and the subscription thereto, and the superscription 
thereon, were and are of the proper handwriting 
and subscription of you, the said Charles Wain- 
wright, &c. 

Eigbtb. Also, &c., that notwithstanding the premises in the 

several preceding articles mentioned, bread and wine 
were not provided by you for the celebration of the 
Holy Communion in the said parish church on Sunday, 
the 3rd day of the month of November aforesaid, and 
that, in consequence of such your neglect^ the Holy Sa* 



THE ECCLESIASTICAL COURTS. ^39 

cnment could not be administered on that day to divers 
persons who proposed to partake of it^ and were in at- 
taidance for that purpose ; and this^ &c. 

AlBOf &c., that you have not yet undergone any Ninth. 
poniahment for your offences aforesaid^ but are by us 
and our authority to be canonically corrected and 
punished ; and this, &c« 

Also^ &c., that you were and are respectively of the Tenth. 
palish of Shepton Mallett aforesaid^ &c. 

Also^ Sui.y that of and concerning all and singular the Eleventh. 
prendsesy &c. 

Also, &c., we will that you^ and each of you^ be ca- Twelfth. 
nonicaUy punished and corrected according to the 
engency of the laws^ and also be condemned in the costs 
of suity &c* 

If the defendant is advised by his counsel to oppose 
the admission of these articles ; viz,^ to demur to the 
I^gal sufficiency of the facts therein contained, even if 
substantiated^ to establish a case against him, a notice 
of such opposition is given to the adverse proctor and 
to the officers of the r^istry. On the following 
oourt-day the objections taken to the articles are en- 
forced and rebutted by the counsel of each party ; and 
the judge will afterwards, according to the strength of 
their respective arguments, either admit or reject the 
plea, or direct a part of it to be reformed or amended. 
In the latter case, unless the reformation meets the ap- 
proval of the defendant and his counsel^ the same course 
of opposition is pursued as in the former case ; or, if no 
objection can be taken to the articles, they are admitted, 
modo et /armd, in the same state as they were originally 
offered. 



240 THE PRACTICE OF " ' ' '^ 

The articles having been admitted^ the proctor for 
the defendant is bound to give an issue, either in the 
negative or the affirmative forthwith. If the issue 
(which is verbal, and is recorded by the registrar in 
the assignation book of the court,) be in the affirmative, 
the facts on which the accusation is based being thereby 
confessed, there is no necessity for examining witnesses 
and for the production of proof of any other kind, and 
the suit is then assigned for sentence summarily and at 
once. 

But to do this, the defendant's proxy must expressly 
authorize his proctor for the purpose. Instead, there- 
fore, of the expressions appearing in the form of proxy 
before given, the authority to the proctor should be 
^'to pray articles, &c., to give an affirmative issue 
thereto, and to submit to the judgment and censure of 
the court,^' &c. 

The party may appear himself personally in court, 
and give the issue without the intervention of his proc- 
tor, but as this would be a constructive revocation of 
the appointment of the latter, he must expressly declare 
that no revocation is intended by him; in which case 
the reservation is recorded by the registrar, and the 
proctor may afterwards proceed to the conclusion of the 
suit, by virtue of his original proxy, and without any 
fresh power from his client. 

If a negative issue be given to the articles, (and which 
is also termed contesting the suit negatively,) the pro- 
moter must then be prepared to produce his witnesses 
in support of his case. 

For this purpose a certain period of time is 
allowed, called the term probatory, within which all 



THE SCCLBStASTICAL COURTS. 241 

proof must be collected^ unless cause to the contrary can 
be shewn, to exi^am the delay, and in that case an ex- 
tension of the term is allowed, on application to the 
court by motion or affidavit* The answers of the de- 
fendant cannot be taken in these suits under the stat. of 
Car. II., (13 Car. c. 12, s. 4.) 

If the witnesses of the promoter reside in town, they 
are respectiyely produced before a surrogate of the 
court, at his chambers, and are sworn and monished to 
attend their examination and cross-examination, when 
required, by the examiner appointed for the pur- 
pose. 

The witnesses having been thus produced and sworn, 
are examined separately in secret by the examiner, both 
in chief and on interrogatories. The former examination 
is verbal, the questions being framed from the words of 
the plea, and the latter on written questions reduced 
into a regular form. 

If the witnesses reside in the country or abroad, a 
C(Hnmission or requisition issues for the purpose of 
taking their evidence. 

After aU the evidence is taken, and the term proba- 
tory has expired, publication will pass as a matter of 
course on tiie depositions in the cause ; the only assig- 
nation being on the defendant to plead exceptively to 
the character of the witnesses. 

And if afiber a perusal of the witnesses^ depositions, 
the proctor for the defendant should be advised to waive 
an alI^;ation of this kind, the cause may be then con- 
cluded and assigned for sentence. 

If it is the intention of the defendant to counterplead, 
he should either assert, or actually bring in an allegation 
responsive to the articles, on the day that publication is 

R 



242 THE PRACTICE OF 

{Mrayed by tiie adverse proctor. This step prevents the 
decree of publication^ and keeps the cause open. 

The all^ation having been brought in, either on the 
day it was asserted, or on die following courtly, the 
same proceedings are followed in respect of its admis- 
sion as in the case of the articles. The general form 
of this plea may be seen in the course of tiiese 
pi^es, and I therefore give no example of it here, the 
facts pleaded varying, of course, according to circum- 
stances. 

The same method is observed in regard to the evi- 
dence taken on the allegation as on the articles. 

No issue is given to an allegation ; but the answers, on 
oath of the adverse party, must be given to each article 
or subdivision of tiie plea. When publication is prayed 
by the drfendanfs proctor on the evidence taken on his 
allegation, a further jdea of that kind may, if necessary, 
be filed on behalf of the promoter, though tius is sel- 
dom requisite. If no such all^ation is offered in the 
prindpza cause, pubtication passes, and both procton 
are assigned to propound all facts by tiie next conrt. 
On that day each proctor may file an allegation excep- 
tive to the testimony of the witnesses on tiie otiier side. 
If no sudi step is taknn by them, tiiey will all^;e, in 
acts of court, that they give no allegation of that kind, 
and the judge will then conefaide thecause and ass%n it 
fdr sentence on the second assignation. 

Nothing titen vemains but tiie fa^oing and judgment. 

If the defendant is acquitted, the assignation Ihm^ of 
the court records that lie is dismissed from the citation 
and all furtiier observance of justice in the suit. If 
condemned, it is by a definitiv« seatenoe, signed by the 
judge, or by a final interbcotory decree, which latter is 



THB KCCLSSIASnCAL COURTS. 243 

foUowed by the semce of a written instrument, such as 
a monition or suspension^ in v^ieh Ae tenns of Ae ilecnee 
are embodied and published. The monition to refiraip 
for the fiituie is the same in its tenpis, whether against a 
deigyman or a layman* 

The fotloviii^ fi>rms mil ittustrate the vaiious seur 
teneie9 now m use. 

Deprivation, 

In the name of Qod, amen. 
Whien^ia ihere is depending in the Archra C!ourt of Deprivation 
Canterbury, by virtM of l^bters of cequest from the 
Bight B^verend Father in G^ Edward, l>y Divine 
penaission Lord Bish(^ of Norwidbi, a /eertoan ca^ae 
of offiea promoted by John KItsoo, Esq. agiunst ji}» 
Seyeraad Arthur hoSim, Qlerk, Vkar of the Umted 
Viqamge lof Fincham Saint Mwrtin, and Reotoiy of 
JPincham Saint Mi^ael, and also Viosr of tb^ Vicaragi^ 
and Parish Church of Holghton, cfQ^rmv^ Hdr 
houghton, wth the VieajEsge <^ Rainham, Ssaajt 
Marfan amiesLed, all in the county of Norfolk, diocese 
of Norwich, and province df Canterbury, in which 1^ 
said Beyerend Arthur Lo£tus, Qerk, has been ^onyented 
to answer to certain .artides, heads, positioiiug, or interr 
rogatories touching .«nd concerning his soul's health 
and the lawful cQifree/OfXi and reformation of his manr 
ACTS and excesses, and moreeqpecisUy for or in respeejt 
of his lewd and indecent conduct Mid conversation, and 
also ibr or in reqpeet c^ his having be^a guilty of the 
foul crime of adultery, ibrnicatioda, or inconjtinence, and 
for other irregularities and e^esses by him committed. 
And whereas we, Hsiibei)^ Jenner Fust, Kni^t, Doctor 

R 2 



244 THE PRACTICE OF 

of Laws^ Official Principal of the said Arches Court of 
Canterbury^ lawfully constituted^ rightly and duly pro- 
ceeding in the said cause^ and having heard, seen, and 
nnderstood, and fully and maturely discussed the merits 
and circumstances, and diligently searched into and con- 
sidered of the whole proceedings had and done therein, 
and observed all and singular the matters and things 
that by law ought to be observed, and having read the 
proofs and heard advocates and a proctor on the part of 
the promoter, and also advocates and a proctor on the 
part of the said Reverend Arthur Lofhis, Clerk, the 
party proceeded against in the said cause, do hereby 
decree, pronounce, and declare that the proctor of the 
promoter has sufficiently proved the articles and exhi- 
bits given^ objected, and admitted in the said cause, 
and the proctor of the promoter praying sentence 
to be given ; and the proctor for the said Reverend Ar- 
thur Lofhis, Clerk, praying justice, therefore we, the 
said Herbert Jenner Fust, Knight, Doctor of Laws, 
having first called upon the name of Christ, and setting 
God alone before our eyes, having maturely deliberated 
upon the proceedings had in the said cause, and the 
offences proved exacting by law deprivation of eccle- 
siastical promotion, have thought fit to pronounce, and 
do accordingly hereby pronounce, decree, and declare 
that the said Reverend Arthur Loflus, Clerk^ by reason 
of the premises, ought by law to be deprived of all his 
ecclesiastical promotions within the said province of 
Canterbury, and especially of tiie said united vicarage 
of Fincham Saint Martin, and rectory of Fincham 
Saint Michael, and also of the vicarage and parish 
diurch of Heighten, otherwise Helhoughton, with the 
vicarage of Rainham Samt Martin annexed, and all 



THE ECCLESIASTICAL COURTS. 245 

profits and benefits of the said united vi(»rage of 
Fincham Saint Martin, and rectory of Fincham Saint 
Michael, and also of the vicarage and parish church of 
Holghton, otherwise Helhoughton^ with the vicarage of 
Rainham Saint Martin annexed^ and all profits and 
benefits of the said united vicarage of Fincham Saint 
Martin, and rectory of Fincham Saint Michael, and also 
of the vicarage and parish church of Holghton, otherwise 
Helhoughton, with the vicarage of Rainham Saint Mar- 
tin annexed, and of any other ecclesiastical promotions 
within the said province of Canterbury whereof he may 
be possessed, and of and from the glebe, fruits, tithes, 
rents, salaries, and all other ecclesiastical dues, rights, 
and emoluments whatsoever belonging and appertaining 
to his said ecclesiastical promotions, or any other ecde- 
aiastical promotions within the said province of Canter- 
bury whereof he is possessed, and we do deprive him 
thereof accordingly, by this our definitive sentence or 
final decree, which we read and promulge by these pre- 
sents, and do also condemn the said Reverend Arthur 
Lofbus, Clerk, in the lawfiil costs made and to be made 
in the said cause, on the part and behalf of the said 
John Kitson, the promoter of these presents. 

Inhibitory Sentence. 

In the name of God, amen. 

Whereas there is now depending in the Arches Court Sentence in- 

o£,Canterbury, by virtue of letters of request, from the ^erk Swn 

Right Reuerend Father m God, by Divine t^e^ercise 

^ . ^ of the mi- 

permission Lord Bishop of , a nistry. 

oertun cause of our office, promoted and brought by 

E F , Esq., against the Reverend 

R 3 



^^\ THE PRACTICE 6F 

A B— — , of the parish of , in the city 

and county of and diocese of 

f and province of Canterbury, Clerk, a minister 
in holy orders of the United Church of England and 
Ireland, but not holding any preferment therein, in 

which the said Reverend A B , Clerk, has 

been convented to answer to certain articles, heads, po- 
sitions, or interrogatories, to be administered to him by 
virtue of our office, touching and concerning his soul^s 
health and the lawful correction and reformation of his 
manners and excesses, and touching and concerning the 
degradation, deprivation, or suspension of hun, the said 

A B , a Clerk in Holy Orders, from the 

ministry, and from the performance of all clerical func- 
tions whatever within the province of Canterbury, by 
reason of his having been convicted, at the general 
quarter sessions of the peace of our Lady the Queen, 
holden at the , in and for the 

said city and county of on the day 

of 18 , of having, in the parish of afore- 

said, in the city and county of aforesaid, wick- 

edly and unlawfully solicited, invited, and endeavoured 

to persuade one C— D to permit and suffer 

him, the said A B to commit that detes- 

table and abominable crime called buggery with the 

said C D , against the order of nature, and 

against the peace of our Sovereign Lady the Queen, 
her crown and dignity, causing great scandal to the 
Church and to his holy orders; and whereas i^, 
Herbert Jenner Fust, Knight, Doctor of Laws, Official 
Principal of the said Arches Court of Canterbury, law- 
fully constituted, rightly and duly proceeding in the 
said cause, and having heard, seen, understood, and 



THB BCCUIIA8TICAL COURTS. S47 

maturely and faJiy discaaaed die merits and ditmm^ 
stances, and diligently searched into and considered of 
the whole proceedings had and done therein and ob« 
fterved all and singular the matters and things tiiat 
by law ought to be obsenred, and having read die 
artidea and exhibits given in, objected, and admitted 

against die said Reverend A B , Clerk, to 

which an affirmative issue has been given m the said 
cause, on the part and behalf of the said Reverend 

A B— — , Clerk, and having heard advocates 

and proctors thereon, do hereby pronounce, decree, 
laid declare tiiat the prodxxr of die promoter of our 
office has suffidendy proved the articles and exhibits 
given, ol^ected, and admitted in die said cause; and the 
proctor of the said promoter praymg sentence to be 

pven, and die proctor for the ssid Reverend A 

B praying justice, therefore we, die said Her- 
bert Jenner Fust, Knigh^ Doctor of Laws, having first 
cfdled upon the name of Christ, and setting God alone 
before our eyes, having maturely deliberated upon the 
proceedings had in the said cause, and the offences suf« 
fioiendy proved and admitted exacting by law inhibition 
firom the exercise of the ministry and all discharge and 
fimction (^ his clerical office, and die execution thereof^ 
within the province of Canterbury, we have thought fit 
to proniMmce^ and do aocordxBgly pronounce, decree, 

and declare, that the Reverend A B ought 

by law to be inMUited from die exerdse of the ministry, 
and firom all discharge and function of his deiical 
office*) and the execution thereof, that is to say, firom 
preaching the word of God and administering the Sa- 
crunents, and cdebrating all other duties and offices 
whatsoever within the province of Canterbury; and we 

r4 



248 THB PRACTICE OF 

do strictly inhibit him therefrom accordingly^ under 
pain of the law^ and contempt thereof, by this our de- 
finitive sentence and final decree, which we read and 
promulge by these presents; and we also condemn the 

said Reverend A B- , in the lawful costs 

made and to be made in the said cause, on the part and 

behalf of the said E — F , Esquire, the 

promoter of our said office, by these presents. 

Suspension. 

Suspension ab Herbert Jenner Fust, Knight, Doctor of Laws, Official 
^^ * * Principal of the Arches Court of Canterbury, 

lawfully constituted, to all and singular, rectors, 
vicars, chaplains, curates, and clerks, whomsoever 
and wheresoever, in and throughout the whole 
province of Canterbury, but more especially the 
churchwardens of the parish of Thakeham other- 
wise Thakeham Saint Mary, in the county of 
Sussex, diocese of Chichester, and province of 
Canterbury, greeting. 
Whereas we rightly and duly proceeding in a certain 
cause of our office, voluntarily promoted and brought 
in virtue of letters of request from the Right Reverend 
Father in God, Ashurst Turner, by Divine permission^ 
Lord Bishop of Chichester, by the Reverend John 
Trower, Clerk, against the Reverend John Hurst, Clerk, 
Rector of the Rectory and parish church of Thakeham, 
otherwise Thakeham Saint Mary, aforesaid, to answer 
to certain articles, heads, positions, or interrogatories, 
administered to him by virtue of our office, touching 
and concerning his soul's health, and the lawful correc- 
tion and reformation of his manners and excesses, and 



THE ECCLESIASTICAL COURTS. 249 

more e^cially for or in respect of his profane cursing 
and swearings and lewd and indecent conduct and con- 
versation j and also for or in respect of his haying been 
guilty of the foul crime of adultery^ fornication^ or 
incontinence, and for other irregularities and excesses^ 
by him committed^ did on the day of the date of these 
presents, by our interlocutory decree haying the force 
and effect of a definitive sentence in writing, decree 
the said Reverend John Hurst, Clerk^ to be suspended 
for the space of three years, (from the time of publish- 
ing the suspension for that purpose in the manner 
hereinafter set forth,) firom the dischaxge and execu- 
tion of all the functions of his derical office, that is to 
say^ from preaching the word of 6od^ administering 
the sacraments, and performing all the duties of such 
his clerical office, in the said parish and parish churchy 
and elsewhere within the province of Canterbury, and 
£rom receiving any of the profits and benefits of the 
said rectory and benefice^ that is to say, from receiving 
and taking the fruits, tithes, rents, profits, salaries, and 
other ecclesiastical dues, rights, and emoluments what- 
soever, belong^g and appertaining to the said rectory 
and benefice, and did suspend the said Reverend 
J. Hurst accordingly, and did condemn him in the 
costs of the said suit, and did order and decree that at 
the expiration of the said three years, the said Reverend 
J. Hurst do and shall exhibit and leave in the registry 
of the said court, a certificate, under the hands of three 
beneficed cleigymen in his vicinity, of his good beha- 
viour and morals during the time of his suspension, and 
that the said certificate be exhibited and approved of 
by the said court before such suspension be taken off 
or relaxed, and that the said suspension shall continue 
in full force, notwithstanding the expiration of the afore* 



250 THE PRACTICE OF 



term of three yeans u^^til the aforesaid certificate 
shall be so exhibited and approved of^ (justice so 
requirix^) we do^ therefore, hereby authorise and 
empower and strictly enjoin and command you, jointly 
and severally, that you do on Sunday the lltb day of 
May, instant, previously to the commenc^nent of 
Divine service, by affixing or causing to be affixed these 
presents under seal for some time on the principal door 
of the churdi of the said parish of Thakeham> other- 
wise Thakeham Saint Mary, and by affixing and leaving 
thereon affixed a true copy hereof, and also by shewing 
or causing to be shewn these presents under seal> to the 
said Reverend John Hurst, Clerk, and leaving or causing 
to be left with him, a true copy hereof, publish and 
declare the said Reverend John Hurst, Clerk, to have 
been so suspended as aforesaid, firom the discharge and 
execution of all the functions of his clerical office, that 
is to say, from preaching the word of God| administer- 
ing the sacraments, and performing all other duties of 
such his clerical office in the said parish and parish 
church, and elsewhere within the province of Canter- 
bury, and firom receiving any of the profits and bene- 
fits of the said rectory and benefice, that is to say from 
receiving and taking the firuits, tithes, rents^ profits, 
salaries, and other ecclesiastical dues, rights, and emolu- 
ments whatsoever, belonging and appertaining to the 
said rectory and benefice, imder pain of the law and 
contempt thereof; and what you shall do or cause to be 
done in the premises you shall duly certify us, our sur- 
rogate, or some other competent judge in this behalf, 
together with these presents. 

Given at London, this third day of May, in the year 
of our Lord 1845. 

Wm. Towkbend, Registrar. 



THE SCCLB8IASTICAL COURTS. 251 



Certificate qf Publication and Service. 

This suspension was dulj pablished in the parish of Certificate of 
Thakeham^ otherwise Thakeham Saint Mary, in the and service, 
coonty of Sussex^ diooeae of Chichester, and province of 
Canterbury, on Sunday, the 11th day of May^ in the 
year of our Lord 1845, by affixing the same for some 
time on the principal door of the church of the said 
parish, previously to the commencement of divine ser- 
vice on the morning of the said day, and by leaving 
thereon affixed a true copy hereof, and also by shewing 
this suspension under seal to, and leaving a true copy 
hereof with, the within named Reverend Jdm Hurst, 
Clerk, on the said 11th day of May, at Thakeham 
aforesaid. 

The mode of publication is shewn by the certificate 
appended to the form last g^ven; it is regulated by 
the act 1 Vict. c. 45, s. 4, which provides ^^ that no decree 
relating to a faculty, or any other decree, citation, or 
proceeding whatsoever in any ecclesiastical court, shall 
be read or published in any church or chapel during or 
immediately after Divine service.'^ 

The term of suspension usually commences from the 
day of the publication of the instrument or process, but» 
under particular circumstances, the court has com- 
puted its duration from the day of the decree (a). 

On the suspension of a clergyman for offences of 
confirmed and habitual viciousness, such as drunkenness 
or extreme incontinence, the court always requires, on 

(u) Cox V. Goodday, 2 Hagg. C. R. p. 142. 



252 THE PRACTICE OF 

the expiration of the term limited for that suspension^ 
a certificate of the good conduct of the party during 
the intermediate period^ from three (generally bene- 
ficed) clergymen residing in the neighbourhood^ and 
imtil this is produced the court will not relax the sus- 
pension^ as it must first be satisfied of the disconti* 
nuance of the obnoxious habit (&)• 

This certificate is not on oath, but if untrue, or 
fraudulently obtained, is open to the objections of the 
adverse side. 



Certificate. 

Certificate of To the Right Honourable Sir Herbert Jenner, Knight, 
JcS'K" ' ^^^^ of I^aws, Official Principal of the Arches 
viour during Court of Canterbury, 

suspemdon. ^^^ ^^^ Reverend A.B. Rector, &c., CD. Vicar, 

&c., and E. F. Vicar, &c., do hereby certify and make 
known that the Reverend Edwin Crane, Clerk, Vicar 
of the vicarage and parish church of Crowle, in the 
county and diocese of Worcester, the party proceeded 
against in the said Arches Court of Canterbury, in a 
certain cause of office, voluntarily promoted by the 
Right Reverend Father in God, Robert James, by 
Divine permission. Lord Bishop of Worcester, and by 
the decree of the said court suspended, for the space 
of three years, from the discharge and execution of all 
the functions of his clerical office, hath, from the time 



(6) Watson y. Thorp, Phill. 1, ing, instituted against a clergy- 

p. 269 ; Saunders v. Davies, man, the court refused to require 

Addams. 1, p. 291 ; Burder v. the certificate mentioned in the 

Speer, Arches Court, Trin. Term, text. Burder v. Langley, Trin. 

1 84 1 . In a proceeding for brawl- Term, 1 842. 



THB SCCLB8IA8TICAL COURTS. 253 

of the said suspension coming into operation, Tiz., the 
10th day of December, in the year 1837> until the 
present time, resided at his vicarage-house at Crowle 
aforesaid, and hath been during ihe whole time per- 
sonally known to us, and hath during such time 
demeaned and conducted himself witii the utmost 
r^ularity and. decorum, and as becoming a minister 
in holy orders ; and we do hereby further certify and 
make known that, in our judgments and opinions, 
the said Reverend Edwin Crane is deserving of being 
restored to the discharge and execution of the functions 
of his clerical office. In witness whereof we have here- 
unto, this day of , in tiie year 
of OUT Lord 18 , subscribed our names. 

(Signed) A. B. 

CD. 
E.F. 

On the requisite certificate or certificates being 
brought in and proving satisfactory, the court wiU, on 
motion of counsel, decree the suspension to be relaxed, 
and the party is tiien restored by such order to his 
former station and duties. 

The following forms are applicable to tiie cases of 
laymen : — 

Suspension ah Ingressu Ecclesite. 

John Nicholl, Knight, Doctor of Laws, Official Prin- suspension 
dpal of tiie Arches Court of Canterbury lawfully «* mgn**** 
constituted, to all and singular rectors, vicars, 
chaplains, curates, and clerks, whomsoever and 



254 THB PRidCTICE OF 

mhexeaoever, io and tinroughout the province of 
Canteifxuy, and more especially to the rector, 
curate, or oAeiating minister <of die parish of 
Minfiter, in the isbnd of Sheppy, county of Kentp 
and proTiAoe of Canterbury, greetii^ : 
Whereas wey rightly and duly proceeding in a oartnn 
cause of our office, promoted by the Reverend Henry 
Turmine, Clerk, Perpetual Curate of the pariah of 
Minster aforesaid, by letters of request under the hiwd 
and seal of ihe Wordiipfiil Herbert Joiner, Doctor 
of Laws, Commissary-GenenJ of the Most Revered 
Father in God, Charles, by Divine Providence, Arch* 
bishop of Canterbury, in and through the whole dty 
and diocese of Canterbury, against Geoi]ge Clarkson, of 
Sheemess, in the said parish, county, and diocese, to 
answer to certain heads, positions, or articles, objected 
against him by virtue of our office, concerning the 
health of his soul and the lawful correction and refor- 
mation of his manners and excesses, but more espe- 
cially for having created a disturbance in the parish 
church of the aforesaid parish of Minster, during the 
time of Divine service, and for quarreHing, chiding, and 
brawling by words in the said church, did, on die day 
of the date of these presents, by our interlocutory 
decree, having the force and effect of a definitive sen- 
tence, in writing, pronounce, decree, and declare that 
- the said George Clarkson had been guilty of quar- 
relling, chiding, and brawling in the parish church of 
Minster aforesaid, as artieulate, and did suspend the 
said George Clarkson ab ingr^emA ecctukB, for the space 
^<Mie fortnight, to be computed from the time of pub- 
ttshing such suspension in the said parish church of 



THB ICCLSaiASTICAL COURTS. 855 

Minster^ and did decree a moniiaoii to issue against 

him, to Tcfirain in fdtare from offending in like manner, 

and did condemn die said George Clarkson in the costs 

of the said suit, justice so requiring : We do therefore 

hereby authorize, empower, and stricfly enjoin and 

command you, jointly and severally, that you, in tibe 

parish church of Mioster aforesaid, upon the Sunday 

immediatdy following the receipt of these presents, 

previously to the commeno^nent of IKvine sendee, by 

affixing, or causing to be affixed, on the principal door 

of the church of the said parish, and by leaving thereon 

affixed a true copy hereof, and also by shewing or 

eausKBg to be shewn to the said George Clarkson theae 

presents uiider seal, and by leaving with him a true 

copy hereoi^ denounce and publish the said George 

Clarkson to be suspended ab ingresiu eccleM, for the 

space of one fartnight from the day of his b^ng so 

denounced and published; and that you do moniah 

him to refrain in future from offending in like manner, 

under pain oi the law and contempt therecKf; abd what 

you shall do in the premises you shall duly certify us, 

our surrogate, <»r some oth^ competent judge in this 

behalf^ together with these preseaots. 

Dated at London, on the by-day of the Micbaekuas 
Term, to wit, the sixth day of December, in the year ^ 
our Loid 1826. 

Monition to Refrain, 

John NichoU, Kni^it, Doctor Q£.Laws, Dean or Com- Monition to 
missaiy of the Deaneries of the Arches, London, '^^^°* 
Shoiehaaa, and Croydon, the peculiar and imme^ 
diate jurisdictian of liie Catiiedial and liietro- 



256 THE PRACTICE OF 

political Church of Christ, Canterbury, lawfully 
constituted, to all and singular clerks and literate 
persons, whomsoever, in and throughout the said 
peculiar jurisdiction, greeting : 
Whereas we, rightly and duly proceeding in a certain 
cause of our office, which was lately depending before 
us in judgment, between the Reverend H. B. Wilson, 
Doctor in Divinity, Rector of the parish of Saint Mary 
Aldermary, London, and peculiar jurisdiction aforesaid, 
the party promoting the said cause, on the one part, 
and Alexander McMath, of the same parish and juris- 
diction, the party accused and complained of, on the 
other part, and duly cited to answer to certain articles, 
heads, positions, or interrogatories, touching and con- 
cerning his soul's health and the lawful correction and 
reformation of his manners and excesses, and more 
especially for interrupting the said Reverend H. B. 
Wilson, Rector of the said parish, when he had taken 
the chair as president at a vestry meeting, held in the 
vestry-room within the walls of the said parish church, 
preventing him from exercising the office of chairman 
or president of the said meeting, and dispossessing him 
thereof, did, by our final interlocutory order or decree, 
having the force and effect of a definitive sentence, in 
writing, pronounce, decree, and declare, that the said 
Alexander McMath had interrupted the said Reverend 
H. B. Wilson, Doctor in Divinity, when he had taken 
the chair, as president, at the vestry meeting held 
within the walls of the parish church of Saint Mary 
Aldermary, London, and had prevented him from exer- 
cising the office of chairman or president of the said 
vestry meeting, and dispossessed him thereof, as 
pleaded and set fortli in certain articles given in and 



THB ECCLBSIA8TICAL COURTS. 2^7 

&(hmtted against him in the said cause, and did more- 
over condemn him in the lawful expenses incurred by 
the said Reverend H. B. Wilson, Doctor m Divinity, 
the Rector aforesaid, (as by the acts and records of the 
said court, reference being thereunto had, will appear ;) 
and whereas we further, rightly and duly proceeding in 
the said cause, did decree the said Alexander McMath 
to be monished that he would refrain from such con- 
duct for the future, justice so requiring : We do there- 
fore hereby authorize, empower, and strictly enjoin and 
conunand you, jointly and severally, peremptorily to 
fflonish, or cause to be monished, the said Alexander 
McMath, that he shall refrain from such conduct for 
the future, under pain of the law and contempt thereof; 
and what you shall do, or cause to be done, in and 
about the premises you shall duly certify us, our surro- 
gate, or other competent judge in this behalf, together 
with these presents. 

Dated at London, the second sessiim of Hilary Term, 
to wit, Thursday, the 27th day of January, in the year 
of our Lord 1826. 



Monition to Repair, ^c. 

William, by Divine permission. Bishop of London, to Monition to 

all and singular, &c. ^^ 

Whereas a certain cause or business of the office 
of the judge was lately depending before the Right 
Honourable Sir William Scott, Knight, Doctor of Laws, 
our Vicar-General, and Official Principal of our Con- 
sistorial and Episcopal Court of London, lawfully con- 
stitated, between the Right Honourable Lord Viscount 
Maynard, Baron of Estaines, at the Mount, in the 

s 



258 THE PRACTICE OF 

cofunty of Essex^ the patron or person having the ad- 
vowson of the churchy and impropriator of the great 
tithes of the parish of Saint Mary^ Thackstead^ other- 
wise Thaxted^ in the same county^ and our diocese of 
London^ the party promoting the said cause or busi- 
ness, on the one part, and John Horner Brand and 
John Fhilpoty the churchwardens of the said parish, 
the parties accused and complained of^ and against 
whom the said cause or business was promoted, on the 
other part^ and duly cited to answer to certain articles, 
heads, positions, or interrogatories, to be administered 
to them by yirtue of the office of the aforesaid judge, 
touching and concerning their souls' health and the 
lawful correction and reformation of their manners and 
excesses, and more especially for refusing or neglecting 
to rebuild or repair the spire of the parish church 
of Saint Mary, Thacksted, otherwise Thaxtead, afore- 
said ; and whereas our vicar-general and official prin- 
cipal aforesaid, rightly and duly proceeding in the said 
cause or business, having first heard advocates learned 
in the law therein and proctors on both sides, did, by 
his final interlocutory orde^ or decree^ having the force 
and effect of a definitive sentence, in writing, pronounce 
that the spire, heretofore built on and from the tower, 
situate at the west end of the said parish church of 
Saint Mary, Thackstead, otherwise Thaxted, and so built 
of freestone, in an uniform style of architecture with 
the said church and tower, with a vane on the top of 
the same, had been destroyed, or had fallen down, (as is 
pleaded and set forth in the aforesaid articles, with an 
exhibit or plan thereto annexed, heretofore given in 
and admitted in this cause or business,) and that the 
said John Homer Brand and John Philpot had refused 



THE ECCLESIASTICAL COURTS. 259 

or neglected to repair the said spire, and directed them, 
the said John Homer Brand and John Philpot, to 
repair and reinstate the said spire, (as by the acts and 
records of the said court, reference being thereto had, 
will appear ;) and whereas our vicar-general and official 
principal aforesaid, further rightly and duly proceeding 
in the said cause or business, did decree the said John 
Homer Brand and John Philpot to be monished to the 
effect hereinafter mentioned, (justice so requiring :) we 
do therefore hereby authorize and empower, and strictly 
enjoin and command you, jointly and severally, pe- 
remptorily to monish, or cause to be monished, the 
said John Homer Brand and John Philpot, (whom we 
do BO monish by these presents,) that they repair and 
jneimtete the said spire as heretofore built on and from 
the toww at the west end of the said parish church of 
Saint Mary^ Thackstead, otherwise Tfaaxted, of free- 
stone, in an unifonn style of architecture with the said 
church and towwy and with a vane on the top of the 
same, which has been destroyed or fidlen down, as 
pleaded and set forth in the aforesaid articles, with an 
exhibit or plan thereto annexed, under pain of the law 
and contempt thereof; and what you shall do in the 
premises you shall duly certify our vicar-general and 
official principal aforesaid, his surrogate, or other com- 
petent judge in this behalf, together with those presents. 
Dated at London, the fourth session of Hilary Term, 
to wit, Wednesday, the 21st day of February, in the 
year of our Lord 1821, and in the sixth year of our 
oonaecmtion. 



s 2 



2G0 



CIVIL SUITS. 



The next division is into causes of instance^ or civil 
suits. 

These embrace a great variety of character in their 
subdivision, and differ greatly from each other, as well 
in their nature as in the degree of importance which is 
attached to them. Their classification may be made as 
follows, viz. : — Ecclesiastical causes, or suits arising on 
a subject connected with the moral principles or the 
legal establishment of the Church, such as defiemiation, 
the perturbation of a pew or church seat, the subtrac- 
tion of church rates, the recovery of penalties for non- 
residence of a clerk, under 1 and 2 Vict. c. 106, the grant 
of a faculty, &c. 2nd. Matrimonial causes, or suits re- 
specting the conduct of married persons, the validity of 
the marriage bond, as impeached through an informality 
in the ceremony, or any civil, physical, or canonical impe- 
diment, alimony, &c. Srd. Testamentary causes, or suits 
respecting the validity or genuineness of last wills, the 
subtraction of legacies, &c. ; and under this last cater 
gory may also be included questions regarding the right 
or interest of peroons asserting a title to lettera of 
administration under an admitted intestacy, the calling 
upon an executor or administrator for an inventory and 



CIVIL SUITS. 261 

account, the allotment or distribution of an intestate's 
personal estate, the application for permission to sue at 
common law on an administration bond, (a breach of 
its conditions being proved,) and the citing an executor 
to prove a will, or a next of kin to take out letters of 
administration. 



262 



ECCLESIASTICAL CAUSES. 



DEFAMATION. 

Thb Ecclesiastical Courts have jurisdiction in those 
cases of defamation where the offence charged is not 
punishable at common law, such words only being cog- 
nizable as impute an offence, which itself would be cog- 
nizable in such courts (a). 

Their jurisdiction is therefore now very limited ; and 
the chief occasion in which it is invoked is when an accu- 
sation of incontinence has been made against a female. 
It is not material whether this defamation is in writing 
or by parole {b), nor is it necessary that the word 
^ whore '^ should be the specific word used; for any 
word that will, in common and popular acceptation, 
imply the crime of incontinence, will amount to the 
same thing (c). In the same manner, to allege a 
person to be a usurer is defiunatory, as the statute 
13 Eliz. c. 8, expressly saves the ecclesiastical juris- 
diction {d)» 

These suits must be commenced within six months 
from the time when the defamatory words were uttered, 
by statute 27 Geo. 3, c. 44, s. 1. 



(a) Crompton v. Butler, in (c) Croinpton v. Butler, ib. 

note, Hagg. C. R. 1, pp. 464-5. p. 465. 

(6) Ware, otherwise Tank, v. (rf) Ib. 
Johnson, Lee, 2, p. 103. 



DEFAMATION. 263 

A citation iasues against the de&mer» in tiie follow- 
ing tenns^ viz. : — 

Citation for Defamation. 

Charles James^ by Divine permission. Bishop of 9^^***' 
London, to all and singular clerks and literate 
persons, whomsoever and wheresoever, in and 
throughout our whole diocese of London, greeting: 
We do hereby authorize and empower, and strictly 
enjoin and command you, jointly and severally, peremp- 
torily to cite, or cause to be cited, A. B«, of the parish 
of Saint Bride, Fleet Street, in the city and diocese 
of London, to appear personally, or by his proctor 
duly constituted, before the Bight Honourable Stephen 
Lushington, Doctor of Laws, Vicar- General and Offi- 
dal Principal of our Consistorial and Episcopal Court 
of London, lawfully constituted, his surrogate, or some 
other competent judge in this behalf, in the Common 
HaU of Doctors' Commons, sitaate in the parish of 
Saint Benedict, near Paul's Wharf, London, and place 
of judicature there, on the third day after he shall have 
been served with these presents, if it be a general 
session, by-day, or additional court-day of our said 
court, other^e on tiie general session, by-day, or addi- 
tional court-day of our said court then next ensuing, at 
the hour of the sitting of the court, and there to abide, 
if occasion require, during its continuance, then and 
there to answer to C. D., of the parish of , 

the county of , widow, in a certain cause 

of defamation or slander, and further to do and receive 
as unto law and justice shall appertain, under pain of 
tiie law and contempt thereof, at the promotion of the 
said A. B. ; and what you shall do or cause to be done 



264 ECCLESIASTICAL CAUSES. 

in the premises you shall duly certify our vicar-general 
and official principal aforesaid^ his surrogate, or some 
other competent judge in this behalf, together with 
these presents. 

Given at London, this twenty-fourth day of August, 
in the year of our Lord 1835, and in the eighth year of 
our translation. 

This citation is signed by the promoter's proctor, and 
is served in the same manner as a citation or decree in a 
purely criminal cause. 

The citation being returned into court, a proxy is 
exhibited from the promoter by her proctor, authorizing 
him ^' to return the same into court, and give a libel in 
the cause, and take such steps as shall be necessary 
towards procuring the defendant to be compelled to re- 
claim and retract the defamatory words, and to be 
otherwise canonically, and according to the exigency of 
the law, punished and corrected,'^ &c. 

An appearance being given for the party cited, a 
proxy is filed on his behalf, in which, if he be inclined 
to make an opposition, an authority is given to his 
proctor in the following terms ; viz. ^' To appear to the 
citation and pray a libel ; and, in case of the same being 
given and admitted, then to contest suit negatively, (i. e. 
give a negative issue thereto,) and to take such steps as 
shall be necessary towards procuring him to be dis- 
missed from the said citation and all further observance 
of justice in the cause," &c. 

The libel being brought in, a copy is immediately de- 
livered to the proctor of the defendant. It is peremp- 
tory on the promoter to file this plea on the day of the 
defendant's appearance and prayer to that effect. And 



DEFAMATION. 265 

if there is any laches in bringing it in on that day, 
the other party is entitled to be dismissed with his 
costs (e). 
The Ubel is as follows : — 



LihelfoT Defamation. 

In the name of God, amen. Before you, the Libel for de- 
Right Honourable Sir William Scott, Knight, Doctor of ^««>at»on. 
Laws, Vicar-General of the Right Reverend Father in 
God, John, by Divine permission Lord Bishop of Lon- 
don, and OfEcial Principal of the Consistorial and 
Episcopal Court of London, lawfully constituted, your 
surrogate, or some other competent judge in this behalf, 
the proctor of Ann Mills' against Mark W ■ , of 
the parish of Saint James, Westminster, in the county 
of Middlesex and diocese of London, and against any 
other person or persons lawfully intervening or appear- 
ing before you in judgment . for him, by way of com- 
plaint, and hereby complaining unto you in this behalf, 
doth say, allege, and in law articulately propound, as fol- 
lows, to wit : — 



{e) The reason of this rule, of the court" (Hagg. C. R. 1. 

which applies to no other suit in p. 170, in note .) Another 

these courts, whether of a civO or reason may have been a reluc- 

criminal nature, is stated by Lord tance to entertain these suits at 

Stowell as follows : — " In that all, and a consequent inclination 

class of cases founded on re- to dismiss them at an early pe- 

proachful words, and mostly be- riod of the proceedings, wherever 

tween the lower orders of the it was just or practicable ; and 

people, there is a strong call on this view is supported by the 

the court to make the necessity of fact that in a cause of defamation 

personal attendance as short as neither party could claim the 

possible ; and therefore a dis- privilege of suing in form& pan- 

tinction may properly be made peris* Oughton, c. 1 , tit. 8, in note 

in such cases under the discretion (6). 



266 ECCLESIASTICAL CAUSES. 

First That all and every persons or person who utter^ 

publish, assert, or rqpoit, or shall have uttered, pub- 
lished, asserted, or reported any reproachful, scandalous, 
or defamatory words, to the reproach, hurt, or diminu- 
tion of the good name, fame, and reputation of any 
other person, contrary to good manners and the bond of 
Christian charity, are and ought to be monished, oon« 
strained, and compelled, to the reclaiming and retracting 
of such reproachful, scandalous, and defamatory words, 
and to the restoring the good name, fame, and reputation 
of the person thereby injiu'ed ; and that for the future 
they refrain from uttering, publishing, or declaring 
any such reproachful, scandalous, and defamatory 
words, and are and ought to be canonically cor- 
rected and pimished, and this was and is true, public, 

and notorious, and so much the said Mark W 

doth know, or hath heard, and in his conscience believes, 
and the party proponent doth allege and propound 
every thing in this and the subsequent articles of this 
libel contidned, jointiy and severally to be true. 

Second. That notwithstanding the premises mentioned and 

set forth in the next preceding article, the said Mark 

W , not having the fear of Ood before his eyes, 

did, in the months of June, July, August, September, 
and October, in the year of our Lord one thousand eight 
hundred and twelve, all, some, or one of them, in the 
parish of Gatton, in the county of Surrey, or some other 
parish or public place in the neighbourhood thereof, or 
near tiiereunto, in an angry, reproachful, and invidious 
manner, several times, or at least once, before sundry 
credible witnesses, defame the said Ann MUls, widow, 
who was and is a person of good name, fame, reputation, 
and character, and charged the said Ann Mills with 



DEFAMATION* 267 

haying committed the foul crime of adultery^ for^ 
iuc8laon> or inoontinency, and speaking to or of, and 
meaning and intending the said Ann Mills, the party, 
agent, and oompbdnant in this cause, said, affirmed, and 
published several times, or at least once, these- or the 
like wcNrds, ^' Tou, thou, or she are, art, or is a whore,'^ 
or words to that or the like effect, or of the same im- 
port and meaning, with several other defiutnatory words; 
and this was and is true, and the party proponent doth 
allege and propound as before. 

That the said Mark W hath several times, or Third. 

at least onoe, before sundry credible witnesses, since the 
uttering and speaking the defiunatory words, in the 
next preceding artide mentioned, owned and confessed 
that he spoke the said defamatory words, in the next 
preceding article set forth ; and this was and is true, and 
the party proponent doth allege and propound as be- 
fore. 

That by reason of speaking the said defamatory words. Fourth. 
the good name, fame, and reputation of the said Ann 
Mills, widow, is very much hurt and injured amongst 
her relations, friends, acquaintance, and others; and 
this was and is true, and the party proponent doth allege 
and propound as before. 

That l^e said Mark W was and is of the Fifth, 

parish of Saint James, Westminster, in the county of 
Middlesex and diocese of London, and therefore, and 
by reason of the premises, was and is subject to the 
jurisdiction of this court ; and this was and is true, and 
the party proponent doth allege and propound as before. 

That the said Ann Mills, widow, the party proponent sixth. 
in this cause, hath rightly and duly complained of the 
premises to you, the vicar-general and official prin- 



268 ECCLESIASTICAL CAUSES. 

cipal aforesaid, and to this court; and this was and 
is true, and the party proponent doth allege and pro- 
pound as before. 
Seventh. That all and singular the premises were and are tnie^ 

public, and notorious, and thereof there was and is a public 
voice, fame, and report, of which legal proof being made, 
the party proponent prays right and justice to be effec- 
tually done and administered to him and his said party 

in the premises, and that the said Mark W > 

for his excess in the premises, may be duly compelled 
to retract and reclaim the defamatory words aforesaid, 
and that for the future he refrain from uttering such 
defamatory words as aforesaid, and that he be con- 
demned in the costs made and to be made in this cause 
on the part and behalf of the said Ann Mills, and 
compelled to the due payment thereof, by you and 
your definitive sentence and final decree to be given 
and pronounced in this cause, and further to do and 
decree in the premises what shall be lawful in this 
behalf, not obliging himself to prove all and singular 
the premises, or to the burthen of a superfluous proof 
against which the party proponent protests ; and saving to 
himself all benefit of law, prays that so far as he shall 
prove in the premises, so far he and his said party 
may obtain in this suit, humbly imploring the aid 
of your office in this behalf. 

The libel having been admitted and issue joined 
negatively, a term probatory is assigned to the promo- 
ter's proctor, and his witnesses are then produced and 
examined. 

To entitle a party defamed to relief in the Ecclesias- 
tical Court, the testimony of two witnesses, at least. 



DEFAMATION. 269 

must be adduced, but it is not necessaiy that they 
should both speak to the same fact It is good proof 
of d^fiimation, and the demand of the law is satisfied^ 
if there are two witnesses speaking separately to facts 
of the same spedes committed at different times (^). 
If the defendant has himself been defamed by the other 
party, he may reconvent him in the same cause, that is^ 
he may give a libel in the presence of his proctor, 
though no citation has been first extracted by him 
against the promoter. If the libel is given before con- 
testation of suit, the proceeding is termed a '^ recon^ 
veniio proprie dicta f and if before conclusion, but 
after an issue has been given, it is then called a '^ re- 
eonveniio imprqprie diet a J* 

And if the defamatory words are mutually proved, a 
mutual compensation is to be made both as to the 
punishment and the costs. But, notwithstanding, the 
judge may, at his discretion, correct both the defiamers, 
by virtue of his mere office (A). 

Reconvention is, however, now obsolete, and there is 
consequently no bar or demur to an accusation of 
slander, but what ia provided by the statute before 
referred to. 

Accordingly, it is usual, on the examination of the 
promoter's witnesses being completed, for publication 
to pass, and the cause to be concluded. 

If the offence charged in the libel is proved, the 
judge wiO^ (either by a final interlocutory decree, or by 
a sentence in writing subscribed by his hand,) decree a 
penance to be performed by the defendant, and will 
also condemn him in the promoter's costs of suit. 

(f ) Cronipton ▼. Butler, Hagg. (A) Conset's Practice of the 
C. R. 1, p. 460. Ecclesiastical Courts, part 6, c. 6, 

8. 7, and hi^ marginal note. 



270 ECCLESIASTICAL CAUSES. 

The sentence is in the following terms: — 



Sentence for Defamation* 

Sentence for In the name of God, amen. We, Stephen Lush- 

defamaUon. j^g^jp^,^ Doctor of Laws, Vicar-GenGral of the Right 

Reverend Father in God, Charles James, by Divine 
permission, Lord Bishop of London, and Official Prin- 
dpal of the Consistorial and Episcopal Court of Lon- 
don, lawfully constituted^ rightly and duly proceeding, 
having heard, seen, and understood, and fuUy and 
maturely discussed, the merits and circumstances of a 
certain cause of defamation or slander, which is contro* 
verted and remains undetermined before us in judg* 
meut, between C« D«, of the parish of in 

the county of , and diocese of London, 

aforesaid, widow, the party, agent, and complainant, on 
the one part, and A. B., of the same parish, in the 
county and diocese aforesaid, the party accused and 
complained of on the other part; and the parties afore- 
said having lawfully appeared before us in judgment, 
by their proctors respectively, and the proctor of the 
said C, D«, praying sentence to be given and justice to 
be done to his party ; and the proctor of the said A.B., 
also praying justice to be done to his party, and having 
first carefully and diligently searched into and consi- 
dered the whole proceedings had and done before us in 
this cause; and having observed all and singular the 
matters and things that by law, in this behalf, ought to 
be observed, we have thought fit, and do thus diink fit 
to proceed to the giving our definitive sentence or final 
decree in this cause, in manner and form following, to 



DEFAMATION. 27 i 

wit: — ^for as much as by the acts enacted, deduced^ 
alleged^ exhibited, propounded, prored, and confessed, 
in this cause, we have found, and it doth evidently 
appear unto us, that Qie proctor for the said C. D. hath 
fuUy and sufficiently founded and proved his intention 
deduced in a certain libel and other pleadings and 
ediibits, ^en in, exhibited, and admitted on her 
behalf, and now remaining in the registry of this court, 
(which libel, other pleadings, and exhibits we take and 
will have taken as if here read and inserted,) for us to 
pronounce as hereinafter is pronounced; and that 
nothing, at least effectual, hath on the part of the said 
A« B., been excepted, deduced, exhibited, propounded, 
proved, or confessed in this cause, which may or ought 
in anywise to defeat, prejudice, or weaken the intention 
of the said C. D. Therefore, we, Stephen Lushington, 
Doctor of Laws, the judge aforesaid, having first called 
upon the name of Christ, and having God alone before 
our eyes, and having heard counsel thereupon, do pro- 
nounce, decree, and declare, that the said A. B. did, in 
the year, months, and place in the said libel mentioned, 
or some or one of them, contrary to good manners 
and the bond of Christian charity, publicly and 
malidously say, publish, and report several scandalous, 
reproachful, and defamatory words, in the said the libel 
mentioned, tending to the infamy, hurt, and diminution 
of the estate, good name, fame, and reputation of the said 
C. D., wherefore we do pronounce, decree, and declare, 
that the said A. B., ought to be duly lind canonically 
corrected and punished, according to the law in that 
behalf provided, for this so great excess and temerity in 
the premises, and to be forced and compelled to 
reclaim and retract such defamatory words, and to the 



272 ECCLESIASTICAL CAUSES. 

restitution of the good name^ fame^ and reputation of the 
said C.D.^ and to cease and desist from such defamatory 
words for the future; and we do also pronounce, decree^ 
and declare the said A.B. to be enjoined and compelled 
to perform a salutary and suitable penance according 
to his demerit, for his excess aforesaid; and we do also 
pronounce, decree, and declare, that the said A.B. be 
condemned in lawful costs and we do condemn him 
accordingly. 

When the judge makes the decree, or signs the sen- 
tence condemnatory of the party cited, he enjoins the 
latter to certify his having performed the penance 
enjoined upon him by a convenient time. 

The decree is carried into effect by the party in the 
following manner. The proctor extracts or obtains 
from the registry, a schedule containing the order of 
the penance in question, which must be performed in 
exact accordance with its directions. 

This schedule is as follows : — 



Schedule of Penance. 

Schedule of The order of Penance, as enjoined by the Worshipful 
penance. Stephen Lushington, Doctor of Laws, Vicar-Ge- 

neral, and OfHcial Principal of the diocese of Lon- 
don, to be performed, by Benjamin Hall, of the 
parish of Saint George in the East, in the county 
of Middlesex and diocese of London, in the vestry 
of the said parish. 
That the said Benjamin Hall shall, on Sunday, the 
I7tih day of July, 1831, immediately after Divine 
service and sermon are ended in the forenoon, come 



DEFAMATION. 

into the vestry-room in the presence of the minister 
and churchwardens of the said parish^ and likewise in 
the presence of Maiy Ann King (wife of Nathaniel 
King,) of the same parish, and five or six of her 
fiiends, if they be there, otherwise in their absence, 
and shall with an audible voice confess and say as 
follows: — 

Whereas I, Benjamin Hall, have uttered and spoken 
certain scandalous and opprobrious words of and 
against Mary Ann King, wife of Nathaniel King, in the 
parish of Saint George in the Easl^ in the county of 
Middlesex, and diocese of London, to the great offence 
of Almighty God, the scandal of the Christian religion, 
and the injury and reproach of my neighbour's credit 
and reputation by calling her a whore; I therefore 
before God and you humbly confess and acknowledge 
such my offence, am heartily sorry for the same, and 
do ask her forgiveness, and promise hereafter never to 
offend her in like manner, God assisting me. 

The said Benjamin Hall, shall duly certify his due 
performance, under the hand of the minister, of the 
said parish, (who shall dictate to him this confession,) 
and shall return this schedule into the registry of the 
Consistory Court of London, on or before the 
day of 1831. 

(Signed) John Shbphard, 

Deputy Registrar. 

On the court-day assigned for certifying the perform- 
ance of the penance, the schedule is returned into 
court, with a certificate, as follows, viz. — 



273 



274 



ECCLESIASTICAL CAUSES. 



Certificate. 

Certificate of Thig schedule of penance was duly perfonned in 
ance of the the vestiy-room of the parish of Saint George in the 
penance. East, in the county of Middlesex^ and diocese of Lon- 
don^ by the within-named Benjamin Hall^ on Sunday, 
the 17th of July, 1831. 

(Signed) R. Fannington, Minister. 

G. W. ScH UDDER, Churchwarden. 
Benjamin Hall. 

This haying been done, the party is dismissed. 

The court will, however, use its discretion, in remit- 
ting the penance, on sufficient cause being shewn, 
such as the delicate health of the defendant, but it 
is not competent to the court to depart from the 
usual form of proceeding unless under special circum- 
stances (^)« 



PERTURBATION OF SEAT. 

The seating of parishioners, though vested by the 
general law in the churchwardens of every parish, is 
liable to be controlled by the revising authority of the 
ordinary, to whom also recourse must be had whenever 

(^) Curt R. vol. 1, p. 37, than a public recantation of the 

Chick V. Ramadale. It ib now offence of which the party has 

held that this part of the sentence been guilty. Ibid. 
is not intendecl as anything more 



PERTURBATION OF SEAT. 275 

the right of possession of a pew forms the subject of a 
dispute between parishioners who assert an equal title 
thereto (A). 

The use of all the pews of a parish church belongs 
to the parishioners. 

They are to be seated therein^ in the first instance^ 
by the churchwardens, but the power of the latter is, 
however, subject to the control of the ordinary who is 
to see that the churchwardens exercise their authority 
discreetly, for the proper accommodation of the parish- 
ioners at large. No contested question regarding title 
or the right of possession can be decided by the church 
officers, who are so far incompetent, but it must be by 
them referred to the cognisance of the ecclesiastical 
consistory to which they may happen to belong. 

If therefore a person having a possessory title to a 
church seat, or a faculty from the ordinary granting or 
confirming possession, is disturbed therein by the 
unauthorized intrusion of any individual, and desires 
relief firom the law, he has his choice of two proceed- 
ings, viz.— either against the churchwardens or the 
perturbator, and his intention will be to obtain from 
the former a protection to his quiet enjoyment of the 
pew in suit, or to compel the latter to prove a prefer- 
able title or cease for the future his illegal intrusion. 

There is also another cause varying slightly in the 
form of proceeding, but of the same general nature. It 
has been observed before, that as all the pews in a 
church are the common property of the parish, and are 
to be applied for the use of the parishioners in com- 



(A) Walter against Gunner and peigne, Phill. R. 3yp. 16|. Fuller 
Dninr, Hagg. C. R. 1, p. 317. ▼. Lane, Add. R. 2. p. 425, 
Hawkins and Coleman v. Com- &c. &c. 

t2 



276 



ECCLESIASTICAL CAUSES. 

mon, the latter are entitled to be provided with such 
aocommodation^ orderly and in accordance with their 
station in society, unless the church is already com- 
pletely occupied, or there exists any other equally strin- 
gent reason to prevent it. When, therefore, no such 
excuse can be given, but the parishioner is still unable 
to obtain a sitting, or at least one that he considers 
proper for himself and family, at the hands of the 
churchwardens, he has a right to invoke the protecting 
power of the ordinary, in order to compel them to 
make him a fit and convenient appropriation. 
The following forms will illustrate the citation : — 



Citation. 

^^^^^y^^ ^^^'S® Henry, by Divine permission, &c., greeting : 
of seat. We do, by these presents, &c. cite or cause to be 

cited, John Murley and Robert Nelson, churchwardens 
of the parish and parish church of Merriott, in the 
county of Somerset, and our diocese and jurisdiction, 
to appear before us, &c. to answer to John Webber, 
nurseryman, a parishioner and inhabitant of the said 
parish of Merriott, and shew good and sufficient cause 
(condudent in law) why he, the said John Webber, 
should not be restored to the occupancy and enjoy- 
ment, by himself and family, of a certain pew (t ), in the 
parish church of Merriott aforesaid, duly allotted to 
him many years since, as suited to his station or condi- 
tion and family, by the churchwardens for the time 
being of the said parish, and which pew, in virtue of 



(t) The situation of the pew identity ; e. g. " situate in the 
may be described, so as to fix its aisle, and numbered 



*» 



PERTURBATION OF SEAT. 

sach allotment, he the said John Webber, with his 
family, was in undisturbed possession of, and occupied 
and enjoyed, from the time of such allotment, until 
unduly dispossessed thereof in the year 1836 {k), at the 
promotion of the said John Webber, &c., &c. 



277 



Citation^ 

Silencer Madan, &c. cite, or cause to be cited, John Citation for 

* the same. 

Marshall, Grocer, and Robert Page, Taylor, Church- 
wardens of the parish and parish church of All Saints, 
in the town of Northampton, in the county and arch- 
deaconry of Northampton, and diocese of Peterborough, 
to appear, &c. to shew cause why they have not seated, 
or caused to be seated, one Henry Becke, of the parish 
of All Saints aforesaid, in the town of Northampton 
aforesaid, in a suitable and convenient seat or pew 
within the said parish church of All Saints, of which 
they, the said John Marshall and Robert P&ge, are 
now the churchwardens, according to his situation and 
condition in life, he the said Henry Becke being an 
attomey-at-law and a solicitor in Her Majesty's Courts 
at Westminster, and a principal inhabitant and pa- 
rishioner of the aforesaid parish of All Saints, in the 
town of Northampton, for the space of one year and 
upwards last past, and he the said Henry Becke having 
duly applied to them, the said John Marshall and 
Robert Page, to be -so seated, and which they have 



{k) In case the objection has "and is a pew no more than ade* 

been taken to the occupancy of a quate to the due accommodation 

pew by the promoter, on account of the said John Webber and hi« 

of a decrease in the number of his family during Divine service." 
family, these words may be added, 



27B ECCLESIASTICAL CAUSES. 

neglected and refused to do^ at the instance and pro- 
motion of him the said Henry Becke, &c. 

The steps before described having been taken^ and a 
libel prayed^ the proctor for the promoter^ if not ready 
with it^ will be assigned to bring it in on the following 
court- day. 

The libel is drawn in the following form^ viz. : — 

Libel. 

Libel for per- In the name of 6od^ &c. 

seat against That, in or about the month of March, in the year of 

the intruder, our Lord 181 7j the said Samuel Turner became pos- 
sessed of a capital leasehold house and premises, situate 
within the said parish of Sunbury, and went to live and 
reside therein, and hath ever since occupied the said 
house and premises, and been a parishioner and inha- 
bitant of the said parish ; and this, &c« 

Second. That, soon after the said Samuel Turner so became a 

parishioner and inhabitant of the said parish of Sun- 
bury, as mentioned and set forth in the next preceding 
article of this libel, he and his family were, with the 
consent of the churchwardens of the said parish for the 
time being, placed and seated in a pew situate in the 
south aisle of the parish church of Sunbury aforesaid, 
(being the pew in question in this cause,) and from that 
time he, the said Samuel Turner, and his family have 
constantly and uniformly used and occupied the same, 
and regularly sat therein, during the time of thdr 
attendance on Divine service in the said church, and 
they so continued in the peaceable and undisturbed 
possession and enjoyment of the said pew, from the 



PERTURBATION OF SEAT. 279 

time they were so placed therein, until they were mo- 
lested and disturbed therein by the said R. H. Qiraud, 
as is hereinafter particularly mentioned and set forth; 
and &C. 

That on a Sunday hajqpening in the beginning of the Third. 
month of September, 1820, and prior to Sunday the 
17th day of that month, the said R. H. Giraud went to 
the said parish church of Sunbury, and, without any 
lawfdl authority for so doing, intruded himself 
and his family into the said pew in question in this 
cause, and sat in and occupied the same during the 
time of Divine service in the forenoon of that day ; and 
this, &c. 

That on Sunday, the said i7th day of September, ia Fourth, 
the said year 1820, the said R. H. Giraud again went 
to the said parish church of Sunbury, and again, with- 
out any lawful authority, intruded himself and his 
family into the aforesaid pew in question in this cause; 
that on the said Samuel Turner also going to the said 
church for the purpose of hearing Divine service, and 
repairing to his aforesaid pew, he found the same occu- 
pied by the said R. H. Giraud and his family, who had 
so intruded themselves therein; that the said Samuel 
Turner requested the sdd R. H. Giraud and his family 
to quit the said pew, but he refused so to do, and con- 
tended that he had a right to use and occupy the same ; 
and he, the said R. H. Giraud, and his fieunily have 
ever since continued to intrude themselves into the 
said pew, and to use and occupy the same, and have 
thereby prevented the said Samuel Turner from using 
and occupying the said pew ; and this, &c. 

That of and concerning the premises, &c« Fi^- 

That the said R. H. Giraud, &c. Sixth. 



280 

Scvciitb. 



ECCLESIASTICAL CAUSES* 

That all and singular, &c. and that the said R« H. 
Giraud may be monished that for the future he refirain 
from intruding himself into the pew in question in this 
cause, and from disturbing or molesting the said Samuel 
Turner or his family in the quiet and peaceable posses* 
sion of the said pew ; &c. &c« 



Libel for the 
same against 
the church- 
wardens, one 
of them be- 
ing the in- 
truder. 

First 



Second. 



LibeL 

In die name of God, &c. 

That ever since the year , the said John Web- 

ber hath possessed a capital house and premises and 
freehold estate, consisting of acres, or there- 

abouts, respectively situate within the said parish of 
Merriott, and hath resided in and occupied the s^d 
house, premises, and estate, and been a parishioner and 
inhabitant of the said parish ; and this was, &c. 

That in or about the month of , in the 

year 1831/ the said parish church of Merriott having 
then recentiy undei^ne considerable repairs, an ap- 
propriation of the pews and sittings therein was, 
under tiie sanction of the vestry of the said parish first 
duly had and obtained, made to and amongst the pa- 
rishioners and inhabitants of the said parish, under the 
direction and by the authority of A. B. and the 
said John Webber, the churchwardens for the time 
being of the said parish. That accordingly, at such 
time, a certain pew, situated in , 

being the pew in question in this cause, was duly as« 
signed and appropriated to the use of the said John 
Webber and his family as parishioners and inhabitants 
of the said parish ; and from such time he, the said 



PBRTURBATION OF SEAT. 281 

John Webber^ and his fiunily, usually to the number of 
six persons^ constantly used and occupied the said pew 
and sat thereia during the time of their attendance at 
DivBie service in the said church, and he and they so 
continued in the peaceable and undisturbed possession 
and enjoyment of the said pew until they were unduly 
and i]l^;ally dispossessed thereof, in the manner and at 
the period hereinafter pleaded and set forth. That the 
said pew was^ in the year , partially altered, 

whereby and otherwise an additional pew was obtained, 
but that the said pew so altered was not increased in 
point of accommodation^ and the same continued, as it 
bad before been^ a fit and proper pew for the said John 
Webber, in respect of his property within the said 
parish, and the number of his family ; and this, &c. 

That from and after the time when the said John Third. 
Wd)ber and his £Eimily were placed in the said pew^ as 
in the next preceding article is pleaded, and during their 
occupation thereof, he^ the said John Webber, in pur- 
suance of or aocbrding to a certain resolution of a vestry 
meeting* duly hdd in and for the said parish, to the effect 
that the parishioners of the said parish occupying pews 
or sittings in the said church should pay a certain sum 
annually, for the purpose of raising a sufficient sum to 
pay and liquidate certain expenses which had been in- 
curred in effecting repairs to the said church, paid 
towards the same the annual sum of forty shillings, and 
he, the said John Webber, hath been and still is ready 
and willing to continue such payments, and hath many 
times declared to the said John Murley and Robert 
Norton his readiness so to do, and tendered or offered 
to pay, the said sum for the purposes or in pursuance of 
the resolution aforesaid, if allowed to continue in or have 
the peaceable occupation of the said ipew ; and this, &c. 



282 ECCLESIASTICAL CAUSES. 

Fourth. That at or about Easter^ in the year 1836^ the said 

John Murley and Robert Norton, as churchwardens of 
the said parish, publicly announced their intention to 
let the said pew, in the occupation, as aforesaid, of the 
said John Webber, at an annual rent to the best bidder 
for the same ; and accordingly they, or one of them, 
put up, or caused to be put up, the said pew to public 
auction ; whereupon the said Robert Norton, on his own 
behalf, bid for the said pew, and having been declared 
the highest bidder for the same, the occupancy of the 
said pew was adjudged to him, the said Robert Norton, 
on his paying annually the sum of two pounds five shil- 
lings as rent for the same ; and they, the said John 
Murley and Robert Norton, did thereupon oust and 
dispossess the said John Webber and his fiunily from 
the said pew, and that they have not, in lieu thereof, 
seated him, the said John Webber, and his family, fitly 
and properly; and this, &c. 

Fifth. That ever since the occasion mentioned and set 

forth in the next preceding article of this libel, the said 
Robert Norton hath unduly and illegally intruded him- 
self and his family into and occupied the said pew, at 
and during the time of the celebration of Divine service 
in the parish church of Merriott, and hath thereby pre^ 
vented, and still continues to prevent, the said John 
Webber and his family from using and occupying the 
same. And the party proponent doth expressly allege 
and propound that the said John Webber hath re- 
peatedly applied to and requested him, the said Robert 
Norton and the said John Murley, to restore him, the 
said John Webber, to the occupancy and enjoyment of 
the said pew, but that they have constantiy refused or 
declined so to do ; and, &c. 

Sixth. . That of and concerning the premises, &c. 



SUBTRACTION OF CITCRCH RATE. 283 



That the said John Morley and Robert Norton are Seventh. 
now the churchwardens for the time being of the parish 
of Merriott aforesaid^ and therefore, and by reason of 
the premises, and of the appearance by them given to 
the citation issued against them in this cause, are sub- 
ject to the jurisdiction of this court; and this, &c. 

That all and singular the premises, &c« And that the Eighth. 
said John Murley and Robert Norton may be monished 
to restore the said John Webber to the occupancy and 
enjoyment of the pew in question in this cause by him- 
self and his ftmily ; and that the said Robert Norton 
may be monished that for the fixture he refrain from 
intruding himself or his family into the said pew, and 
from disturbing or molesting the said John Webber and 
his family in the possession of the same; and that the 
said John Murley and Robert Norton may be con- 
demned in the costs of suit made, &c« 

The libel having been admitted to proof, an issue is 
required from the defendant. If given in the negative, 
the personal answers of the latter are taken, and there 
is henceforth no discrepancy between the practice ob- 
served in this and the suit for de&mation. 



SUBTRACTION OP CHURCH RATE. 

On the refusal of a parishioner to pay a rate for the 
repairs and necessary expenses of a church or chapel, 
legaUy made by the parishioners and inhabitants of the 
parish or chapelry assembled in vestry, the church- 



284 ECCLESIASTICAL CAUSES* 

wardens may proceed against the recusant, to recover 
his proportion of the assessment, in a cause of subtrac- 
tion of church-rate. 

These questions are obviously of ecclesiastical cogni- 
sance, but under the 53d Geo. IIL c. 127, & limitation 
has been placed upon the latter. By the seventh sec- 
tion of that act, it is provided that if any person rated 
to a church or chapel-rate (the validity of which has not 
been questioned in any ecclesiastical court,) refuses pay- 
ment of it, any justice of the county, &c., on complaint 
of the churchwardens, may convene such person before 
two or more justices, who may examine, on oath, into 
the merits of the complaint, and order payment of any 
sum so due, not exceeding j£lO besides costs ; but if the 
validity of the rate, or the. liability of the person frotai 
whom it is demanded be disputed, and the party disputing 
it give notice thereof to the justices, their jurisdiction 
ceases and that of the ecclesiastical courts attaches. 

The church-rate must be required for the reparation 
of the fabric and ornaments of the church and the ne- 
cessary expenses of Divine service, in which are included 
the expense of consecration (/)• 

The law requires that all the property shall be rated i 
houses and lands, and property of that description (m) 
are primd facie liable to church-rate, and the rate to be 
paid by the occupiers in the parish should be made 
according to the value of their several occupations. 

The presumption is in £Eivour of a church-rate, and 
the burthen of disproving its legality lies upon the im- 
pugnant. 



(/) Warner v. Gater, 2 Curt (m) Chesterton and Hutching 
p. 315. . V. Farlar, 1 Curt. p. 3d4. 



SUBTRACTION OF CHURCH RATE. 285 

The various defects which vitiate a church-rate may 
be thus enumerated: inequality in the assessment (n), 
or the omission of parishioners in it (o) : the illegality 
of Ae mode in whiTL vestry has been oonsfZd, 
the manner of voting thereat, &c. ; the fact of the rate 
being retrospective ; the inclusion in it of objects foreign 
to its nature^ such as the salary of an incumbent, &c. (p) ; 
the non-liability of die person rated, &c. 

The practice in this kind of suits is the same as in 
those which have immediately preceded. 

I will give forms of the citation and Ubel:— 

Citation. 

Charles James, by Divine permission Bishop of Lon- Citation for 
don, to all singular clerks and literate persons, of churcb- 
whomsoever and wheresoever in and throughout ™*®* 
our whole diocese of London, greeting : 
We do hereby authorize, empower, and strictly enjoin 
and command you, jointly and severally, peremptorily 
to cite, or cause to be cited, Frederick Shore Nodin, a 
parishioner and inhabitant of the parish of Saint Olave, 
Hart Street, in the city of London and our diocese 
aforesaid, to appear personally or by his proctor, duly 
constituted, before the Right Honourable Stephen 
Lushington, Doctor of Laws, our Vicar-General and 
Official Principal of our Consistorial and Episcopal 
Court of London, lawfully constituted, his surrogate, or 

(n) Lee and Parker v. Chal- (p) Tann and Clithero y. 

craft, 3 Phill. p. 639. Owen, June 6, 1834. Cons, of 

(o) Miller ▼• Bloomfield, Deleg. London, decision of Dr. Lushing- 

2 Add. p. 33. But a slight ine- ton. 
quality or an unimportant omis- 
sioa ml not be held fatal. 



286 ECCLESIASTICAL CAUSES. 

some other competent judge in this behalf, in the Com- 
mon Hall of Doctors Commons, situate in the parish of 
Saint Benedict, near Paul's Wharf, London, and place 
of judicature there, on the Aird day after he shall 
have been served with this citation, if it be a general 
session, by-day, or additional court-day of our said 
court, otherwise on the general session by-day, or 
additional court-day of our said court then next en- 
suing, at the hour of the sitting of the court, and there 
to abide, if occasion require, during its continuance, 
then and there to answer to John Dixon and John Hat- 
chett, the churchwardens of the said parish, in a certain 
cause of subtraction of church-rate, and further to do 
and receive, as unto law and justice shall appertun, 
under pain of the law and contempt thereof, at the pro- 
motion of the said John Dixon and John Hatchett, and 
what you shall do, or cause to be done, in the premises, 
you shall duly certify our vicar-general and official 
principal aforesaid, or some other competent judge m 
this behalf, together with these presents. Dated at 
London, &c. 

Libel. 

Libel for In the name of God, amen, &c. 

of ^rch" T^t on or about the twenty-eighth day of June, in 
rate. the year of our Lord one thousand eight hundred and 

Punt. thirty-three, the churchwardens and parishioners, (rate- 

payers,) of the parish of Saint Mary Abbotts, Kensing- 
ton aforesaid, met in the vestry-room of the said parish, 
pursuant to due and legal notice given in that behalf on 
the Sunday then next preceding, and being so met, then 
and there duly made a rate or assessment of fourpence 



SUBTRACTION OP CHURCH RATE. 28? 

in the pound on all properties in the said parish^ or 
rateable, or on all the inhabitants of the said parish, 
and others so rateable, in respect to such properties, 
for and towards the repairing, cleansing, preserving, 
supporting, and amending the parish church of the 
said parish, and for defraying and indemnifying the 
churchwardens of the said parish, of and in respect to 
aU incidental costs and expenses which they might be 
put to touching or concerning their said office of church- 
wardens for the year, from Lady^day in the year of our 
Lord one thousand eight hundred and thirty-three, to 
Lady-day in the year of our Lord one thousand eight 
hundred and tibirty-four. That the said rate was after-* 
wards duly confirmed, and that, in compliance there- 
with and in conformity thereto, by far the greater part 
of the inhabitants and others, rate-payers of the said 
parish, have paid and satisfied the respective simis of 
money to or at which they were rated or assessed in and 
by the said rate ; and this, &c. 

That prior to, and at the time of the making of the Second. 
rate in the next preceding article pleaded, the said Wil- 
liam Farlar, party in this cause, did, as he now does, 
hold, occupy, possess, or enjoy a messuage, tenement, 
or dwelling-house and premises, of the annual value of 
fifty-five poimds, situate at No. 41, Brompton Square^ 
in the said parish of Saint Mary Abbotts, Kensington, 
for and in respect of which he was rightly and equally 
rated and assessed, in the rate aforesaid, at the sum 
of eighteen shillings and fourpence ; and that he did 
also, at the time aforesaid, hold, occupy, and enjoy 
other rateable premises within the said parish^ which 
sre described in the said rate at the sum of two shillings 
and eightpenoe ; and this, &c. 



288 ECCLESIASTICAL CAUSES. 

Tliird. That in part supply of proof of the premises in the 

next preceding articles pleaded, .the party proponent 
craves leave to refer to the original book, wherein the 
inhabitants and otliers occupying premises in the parish 
of Saint Mary Abbotts, Kensington, aforesaid, were 
rated and assessed pursuant to the resolution of the 
said vestry as before pleaded, to be brought into tiie 
registry of this court (if necessary), and referred to at 
the hearing of this cause $ and also doth exhibit, hereto 
annex, and pray to be here read and inserted and taken 
As part and parcel hereof, a paper writing marked No. I, 
and doth allege and propound the same to be and con- 
tain a true and faithful copy of the assessment or charge 
made upon the said William Farlar, in respect of the 
house and stable occupied by him as aforesaid, as 
pleaded in the next preceding article and appearing in 
the said book. That the sidd paper writing hath been 
faithfully extracted from the said original book, and 
hath been carefully collated with the same, and found 
to agree therewith ; that all and singular the contents 
of the said book and paper writing were and are true; 
that all things were so had and done as therein con- 
tained; and that William Farlar therein mentioned, 
mid William Farlar, party in this cause, were and are 
the same persons, and not divers ; and this, &c. 

Fourth. That the said William Farlar hath been several times 

requested and desired to pay, or cause to be paid, the 
said sum of eighteen shillings and fourpence, and two 
shillings and eightpence, so rated and assessed upon 
him, as aforesaid, but hath refused, and still doth refuse, 
to pay the same ; and this, &c. 

Fifth. That the said William Farlar was and is of the parish 

of Saint Mary Abbotts, Kensington, in the county of 



SUBTRACTION OF CHURCH RATE, 289 

Middlesex^ and diocese of London^ and therefore and 
by reason of the premises was and is subject to the 
jurisdiction of this court; and this^ &c. 

That the said Charles Chesterton and Samuel Hut- Sixth, 
chins^ the parties in this cause, were duly sworn and 
admitted into the office of churchwarden of the said 
parish of Saint Mary Abbotts, Kensington, aforesaid, 
for the year of our Lord one thousand eight hundred 
and thirty-three; have since continued to be, and now 
are, the Churchwardens of the said parish; and that 
the said sums of eighteen shillings and fourpence, and 
two shillings and eightpence, are now due from the said 
William Farlar, and payable to them, the said church- 
wardens ; and this, &c. 

That of and concerning the premises it hath been Seyenth. 
and is, on the part and behalf of the said Charles 
Chesterton and Samuel Hutchins, the Churchwardens 
aforesaid, rightly and duly complained to you, the 
Vicar-General and Official Principal aforesaid, and to 
this court ; and this, &c. 

That all and singular the premises were and are true. Eighth, 
public, and notorious, and thereof there was and is a 
public voice, fame, and report, of which legal proof 
being made, the party proponent prays right and jus- 
tice may be effectually done and administered to the 
said Charles Chesterton and Samuel Hutchins, in the 
premises, and that the said William Farlar may be 
adjudged to pay the said sums of eighteen shillings 
and fourpence, and two shillings and eightpence, 
so assessed upon him as aforesaid, and condemned 
in costs, and compelled to the due payment of the 
same by you and your definitive sentence, or final 

u 



article. 



290 ECCLESIASTICAL CAUSES. 

interlocutory decree to be given in that behalf; and 
thisy &c. 
Additional That the said Charles Chesterton and Samuel Hut- 
chins^ the Churchwardens aforesaid^ by virtue of their 
said office^ caused the said William Farlar (and other 
defaulters) to be summoned on the twenty-third of 
May, one thousand eight hundred and thirty-five, be- 
fore two of His Majesty's Justices of the Peace for the 
county of Middlesex, for the Brompton district, in the 
said parish of Saint Mary Abbotts, Kensington afore- 
said, to shew cause why he refused to pay the said sums 
of eighteen shillings and fourpence, and two shillings 
and eightpence, so assessed upon him as aforesaid; 
that the said William Farlar accordingly attended such 
summons, but refused to pay, distinctly on the ground 
of his objecting to the legality of the said assessment, 
in consequence whereof the said magistrates declined to 
proceed for the recovery of the said rate or assessment. 



SUITS TO RECOVER PENALTY FOR NON- 
RESIDENCE, UNDER 1 & 2 VICT. C. 106. 

Under the 1 and 2 Vict. c. 106, (entitled "An Act 
to abridge the holding of Benefices in Plurality and 
to make better Provision for the Residence of the 
Clergy,'') and by the 32nd and 114th sections of 
that act, a person, duly authorized by the bishop of 



PENALTY FOR NON-RESlOEl^CE. 291 

the diocese^ by writiog, under his hand and seal^ is 
empowered to sue for and recover^ in the court of such 
bishop, certain proportions of the annual value of the 
benefice of any spiritual person who shall, without such 
license or exemption as is allowed in the same act, 
absent himself from his benefice or house of residence 
for certain periods specified therein (g). 

The proceedings under this statute are conducted 
according to the general ecclesiastical practice, and may 
be illostrated by the following forms. 

The authority, under the hand and seal of the bishop, 
appointing the promoter of the suit, is as foUows :— 



Bishop^s Authority to the Promoter. 

Whereas the Reverend John Bluck, Clerk, Rector Bisbop'g 
of the parish and parish church of Walsoken, in the «^*^o"*y ^ 
coimty of Norfolk and diocese of Norwich, has, with- moter, 
out any such license or exemption as is allowed for that 
purpose in an Act of Parliament, passed in the session 
of Parliament held in the first and second years of the 
reign of Her present Majesty, entitied "An Act to 
abridge the holding of Benefices in Plurality, and to 
make better Provisions for the Residence of the 
Clergy,'' and without having been resident at some 
other benefice of which he was possessed, absented 
himself from his benefice of Walsoken aforesaid, for a 
period exceeding the space of three months^ and not 
exceeding six montiis, of and in the year ending the 
thirty-first day of December, one thousand eight hun- 

{q) Bluck V. Rackhain, Arches, Easter Term, 1845. 

U2 



292 BCCLESIASTICAL CAUSES. 

dred and forty-two, and by reason thereof, under the 
provisions of the said act, has forfeited one-third part 
of the annual value of the said benefice. 

And whereas it is provided by the said act that all 
penalties and forfeitures incurred under the same by 
any spiritual person holding a benefice shall be sued for 
and recovered in the court of the bishop of the diocese 
in which such benefice is situate, and by some person 
duly authorized for that purpose by such bishop, by 
writing under his hand and seal. Now know all men 
by these presents that we Edward, by Divine permis- 
sion, Lord Bishop of Norwich, in pursuance of the 
provisions of the said Act of Parliament, have autho- 
rized, and by these presents under our hand and seal 
do authorize, Matthew Rackham, of the hamlet of 
Thorpe, in the county of the city of Norwich, Gen- 
tleman, to sue for and recover in our Episcopal Consis- 
torial Court of Norwich, as well the said penalty or 
forfeiture as all or any other penalties or forfeitures in- 
curred under the aforesaid act by the said Reverend 
John Bluck by reason of his absence from his said 
benefice as aforesaid, and, if necessary, to pray and 
procure from our said Episcopal Consistorial Court at 
Norwich a monition and sequestration or monitions 
and sequestrations to enforce the payment of the said 
penalties and forfeitures, together with the reasonable 
expenses incurred in recovering the same ; and further 
to do and expedite whatever else may be requisite and 
necessary towards the recovery of the said penalties ; 
and whatsoever the said Matthew Rackham shall law- 
fully do or cause to be done herein we do hereby pro- 
mise to ratify, allow, and confirm. In witness whereof 



PENALTY FOR NON-RESIDENCE. 293 

we have hereunto set our hand and seal this eleventh 
day of September, in the year of our Lord one thousand 
eight hundred and forty-three. 

Edw. Norwich, (L.S.) 
Signed, sealed, and delivered in the presence of us, 

W. N. H. Turner. 
Robert Gale. 

The decree against the clerk is as follows : — 

Decree. 

Edward, by Divine permission. Lord Bishop of Nor- Decree, 
wich, to all and singular clerks and literate persons, 
whomsoever and wheresoever, in and throughout 
our whole diocese of Norwich, greeting : 
Whereas the Worshipful Charles Evans, Esquire,^ 
Master of Arts, Surrogate, duly appointed of the Wor- 
shipful William Yonge, Clerk, Master of Arts, our 
Vicar-General in Spirituals, and Official Principal of 
our Episcopal Consistorial Court of Norwich, lawfully 
constituted, rightly and duly proceeding, hath, at the 
petition of the proctor of Matthew Rackham, of the 
hamlet of Thorpe, in the county of the city of Norwich, 
Gentleman, decreed the Reverend John Bluck, of Wal- 
soken, in the county of Norfolk, Clerk, Rector of the 
parish and parish church of Walsoken aforesaid, within 
our diocese of Norwich, to be cited and called to appear 
in judgment on the day, and at the time and place, and 
to the effect hereinafter mentioned, (justice so requir- 
ing;) we do therefore hereby authorize and empower, 
and strictly enjoin and command you, jointly and seve- 
rally, peremptorily to cite or cause to be cit^d the said 



294 ECCLESIASTICAL CAUSES. 

Reverend John Bluck to appear personally or by his 
proctor, duly authorized, before our said Vicar-General 
in Spirituals, and Official Principal of our Episcopal 
Consistorial Court of Norwich, lawfully constituted, his 
surrogate, or some other competent judge in this behalfc 
in the Cathedral Church of the Holy and Undivided 
Trinity, of Norwich, at the place of judicature there, on 
Monday, the eighteenth day of September instant, at 
the usual hours for hearing causes there, then and there 
to shew cause (if he has or knows any) why he the said 
Reverend John Bluck should not be pronounced to 
have forfeited one-third of the annual value of his 
benefice of Walsoken aforesaid, by reason of his having 
been absent therefrom for a period exceeding the space 
of three months, and not exceeding the space of six 
months, of and in the year ending the thirty-first day 
of December, one thousand eight hundred and forty- 
two, without any such license or exemption as is 
allowed for that purpose in an Act of Parliament 
passed in the session of Parliament held in the first 
and second years of the reign of Her present Majesty, 
entitled '^ An Act to abridge the holding of Benefices 
in Plurality, and to make better Provision for the Resi- 
dence of the Clergy,^^ and without having been resident 
at some other benefice of which he was possessed ; and 
why the payment of such forfeiture, together with the 
reasonable expense incurred in recovering the same> 
should not be enforced by monition and sequestration, 
under and pursuant to the provisions of the said statute 
passed in the session of Parliament held in the first and 
second years of the reign of Her present Majesty as 
aforesaid ; and further to do and receive as unto law 
and justice shall appertain, imder pain of the law and 



PENALTY FOR NON-RESID£NC£. 295 

contempt thereof, at the suit or instance of the said 
Matthew Rackham, duly authorized for that purpose 
by us in writing under our hand and seal ; and what 
you shall do or cause to be done in the premises you 
shall duly certify our said vicar-general in spirituals and 
official principal, his surrogate, or some other compe- 
tent judge in this behalf, tc^ether with these presents. 

Given under the seal of our said vicar-general and 
official principal, which in this behalf we use, this 
twelfth day of September, in the year of our Lord one 
thousand eight hundred and forty-three, and of our 
consecration the seventh. 

The libel is as follows: — 



LibeL 

In the name of God, amen,-&c. Libel for 

That in and by a certain Act of P^liament made and Son-mi-^'* 
passed in a session of Parliament held in the first and dence. 
second years of the reign of Her present Majesty, 
entituled '^ An Act to abridge the holding of Benefices 
in Plurality, and to make better Provision for the 
Residence of the Clergy,^' it is amongst other things 
enacted in words, or to the effect, ^' that every spiritual 32nd Sec ^ 
person holding any benefice shall keep residence on his ^^^ 
benefice, and in the house of residence (if any) belong- 
ing thereto; and that if any such person shall without 
any such license or exemption as is in the said act 
allowed for that purpose, or unless he shall be resident 
at some other benefice of which he may be possessed, 
absent himself from such benefice or firom such house 
of residence (if any) for any period exceeding the space 



296 ECCLESIASTICAL CAUSES. 

of three months together^ or to be accounted at several 
times in any one year, he shall^ when such absence 
shall exceed three months and not exceed six months, 
forfeit one-third part of the annual value of the bene- 
fice from which he shall so absent himself;*' and that it 
is in and by the said act further provided in words or to 

n4th Sec the eflFect, ^' that all penalties and forfeitures which shall 
be incurred under the same by any spiritual person 
holding a benefice shall and may be sued for and reco- 
vered in the court of the bishop of the diocese in which 
such benefice is situate, and by some person duly 
authorized for that purpose by such bishop by writing 
under his hand and seal, and in no other court and by 
or at the instance of no other person whatsoever; and 
that the payment of every such penalty or forfeiture, 
together with the reasonable expense incurred in 
recovering the same, shall and may be enforced by 
monition and sequestration; and that the said Act of 
Parliament is a public Act, and that the same is and 
ought to be known and taken notice of by all judges 
and courts of judicature. And this was and is true, 
and the party proponent alleges and propounds of 
everything in this and the subsequent articles of tliis 
allegation contained jointly and severally. 

Second. That the said Reverend John Bluck, Clerk, (the 

party against whom this cause is promoted,) is a priest 
or minister in holy orders of the Church of England, 
and for two years and upwards last past hath been and 
now is rector of the rectory and parish church of 
Waboken, in the county of Norfolk and diocese of 
Norwich, whereto he hath been rightly and lawfully 
instituted and inducted; and that for and as the lawful 
rector of the said rectory and parish church of Wal- 



PENALTY FOR NOM-RESIDBMCE. 297 

soken tbe sud Reverend John Black hatih been for two 
years and upwards last past and now is commonly 
accounted, reputed, and taken. And this was and is 
true, and so much the said Reverend John Bluck 
knows or has heard and believes^ and in his conscience 
admits and confesses to be tnie, and the party propo- 
nent alleges and propounds as before. 

That the said Reverend John Bluck, being rector of Third. 
the said rectory and parish church of Walsoken as 
aforesaid, and neither having any such license or 
exemption £rom residence upon his said benefice as 
is allowed in the Act of Parliament aforesaid, nor 
resident upon any other benefice whereof he was 
possessed, absented himself firom, and did not keep 
residence at, his said benefice of Walsoken for a period 
exceeding three months, and not exceeding six months, of 
and in the year beginning and ending respectively the first 
day of January and the thirty-first day of December, one 
thousand eight hundred and forty-two, to wit, firom, on, 
or about the twenty-ninth day of August to the said 
thirty-first day of December of the said year; and that 
he hath thereby, imder the provisions of the aforesaid 
Act of Parliament hereinbefore set forth or mentioned, 
forfeited one third part of the annual value of his said 
benefice of Walsoken. And this was and is true, 
public, and notorious, and the party proponent alleges 
and propounds as before. 

That the net annual value of the said benefice Fourth, 
of Walsoken, estimated in manner as directed in 
and by the aforesaid Act of Parliament for all the 
purposes of the said act, is the sum of one thousand 
and three hundred pounds, or one thousand and two 
hundred pounds, or at least one thousand and one hun- 



298 ECCLESIASTICAL CAUSES^ 

dred pounds; and this was and is true^ public^ and 
notorious^ and the party proponent allies and pro- 
pounds as before* 
Fifth. That the Right Reverend Father in God^ Edward^ by 

Divine permission^ Lord Bishop of Norwich, hath, in 
and by a writing under his hand and seal, duly autho- 
rized and empowered the said Matthew Rackham to 
sue for and recover all penalties and forfeitures inconed 
by the said Reverend John Bluck, imder or in pur^ 
suance of the provisions of the Act of Ptoliament 
aforesaid; and that the said writing (to which in supply 
of proof the party proponent prays leave to refer) hath 
been and now remains duly filed in the registry of this 
court; and this was and is true, public, and notorious, 
and the party proponent alleges and propounds as 
before. 
Skth. That of and concerning the premises it hath been 

and is, on the part and behalf of the said Matthew 
Rackham, rightly and duly complained to you, the 
surrogate of the official principal aforesaid; and the 
party proponent alleges and propounds as before. 
Seyenth. That all and singular the premises were and are true, 

public, and notorious, and thereof there was and is a 
public voice, fame, and report, of which legal proof 
being made, the party proponent prays that right and 
justice may be effectually done and administered to him 
and his said party in the premises; and that the said 
Reverend John Bluck may be pronounced to have for- 
feited one third part of the annual value of his benefice 
of Walsoken aforesaid, and be condenmed in the pay- 
ment thereof and of the reasonable expense incuired 
in the recovery of the same in this cause and other- 
wise, and compelled to the due payment thereof by 



PENALTY FOR MON-RBSIDEMCE. 299 

your definitiye sentence or final decree to be given and 
made in this behalf; and that the same may be eur 
forced^ if need be, by monition and sequestration, the 
party proponent not obliging himself to prove all and 
singdar the premises or to the burden of a superfluous 
proof, against which he protests, and prays that so far 
as he shall prove in the premises, so far he may obtain 
m his petition, the benefit of the law being always 
preserved. 

The sentence is a follows:-*- 



Sentence. 

In the name of God, amen. We, Charles Evans, sentence. 
Esquire, Master of Arts, Surrogate, duly appointed, of 
the Worshipful William Yonge, Clerk, Master of Arts, 
Vicar-General in Spirituals, of the Right Reverend Fa- 
ther in God, Edward, by Divine permission. Lord Bishop 
of Norwich, and also Official Principal of the Episco- 
pal Consistorial Court of Norwich lawfully constituted, 
rightly and duly proceeding, having heard, seen, and 
understood, and fully and maturely discussed the 
merits and circumstances of a certain cause or business 
now depending before us in judgment, promoted and 
brought by Matthew , Rackham, of tlie Hamlet of 
Thorpe, in the county of the city of Norwich, Gentle- 
man, against the Reverend John Bluck, Clerk, Rector 
of the rectory and parish church of Walsoken, in the 
county of Norfolk, within the diocese of Norwich, of 
shewing cause, if he has or knows any, why he, the 
said Reverend John Bluck, should not be pronounced to 
have forfeited one-third of the annual value of his 



300 ECCLESIASTICAL CAUSES. 

benefice of Walsoken aforesaid^ by reason of bis bay- 
ing been absent tberefrom for a period exceeding the 
space of three months and not exceeding six months, 
of and in the year ending the thirty-first day of De- 
cember, one thousand eight hundred and forty-two, 
without any such license or exemption as is allowed for 
that purpose in an Act of Parliament passed in the 
session of Parliament held in the first and second 
years of the reign of Her present Majesty, intituled 
'^ An Act to abridge the holding of Benefices in Plu- 
rality, and to make better Provision for the Residence of 
the Clergy,'' and without having been resident at some 
other benefice of which he was possessed, and why the 
payment of such forfeiture, together with the reason- 
able expense incurred in recovering the same, should 
not be enforced by monition and sequestration, under 
and pursuant to the provisions of the said statute, 
passed in the session of Parliament held in the first and 
second* years of the reign of Her present Majesty as 
aforesaid, in which cause the said Matthew Rackham 
and the said Reverend John Bluck having lawfuUy 
appeared before us in judgment by their proctors 
respectively, and the said proctor of the said Matthew 
Rackham having prayed sentence to be ^ven for and 
justice to be done to his party, and that the said Reve- 
rend John Bluck may be pronounced to have forfeited 
one-third part of the annual value of his benefice of 
Walsoken aforesaid, and be condemned in the payment 
thereof and of the reasonable expense incurred in the 
recovery of the same 'in this cause and compelled 
to the due payment thereof by our definitive sentence 
or final decree, and that the same may be enforced, if 
need be, by monition and sequestration. And the 



PENALTY FOR NON-RESIDENCE. 301 

proctor of the said RcYerend John Bluck also having 
prayed sentence to be given for and justice to be done 
to his party, and we, having observed all and singular 
the matters and things which by law ought to be ob- 
served on this behalf, have thought fit, and do thus 
think fit, to proceed to the giving our definitive sen- 
tence or final decree in this cause in manner following, 
to wit: — ^Forasmuch as by the acts enacted, deduced, 
alleged, exhibited, propounded, proved, and confessed 
in this cause, we have found and it doth evidently 
appear to us that the proctor of the said Matthew 
Rackham hath sufficiently proved his intention, de- 
duced in a certain allegation given in and admitted on 
his part and behalf in the said cause, and now remain- 
ing in the registry of this court (which said allegation 
we take and will have taken as if here read and 
inserted) for us to pronounce as hereinafter is pro- 
nounced, and that nothing, (at least effectual in 
law,) hath on the part and behalf of the said Reve- 
rend John Bluck been excepted, deduced, alleged, exhi- 
bited, propounded, proved, or confessed in this cause 
which may or ought in any wise to defeat,^ prejudice, or 
weaken the intention of the proctor of the said 
Matthew Rackham. 

Wherefore we, the Worshipful Charles Evans, Es- 
quire, Master of Arts, Surrogate duly appointed, of the 
Worshipful William Tonge, Clerk, Master of Arts, 
'\^car-General in Spirituals and Official Principal as 
aforesaid, having heard the proctors of the parties in 
this behalf, do pronounce, decree, and declare that the 
said Reverend John Bluck, being a priest or minister in 
holy orders of theChurch of England fortwo years and up- 
wards last past, hath been and now is rector of the rectory 



B/02 ECCLESIASTICAL CAUSES. 

and parish church of Walsoken aforesaid, and hath been 
thereto rightly and lawfully instituted and inducted. 
And we also pronounce^ decree, and declare, that 
according to the lawful proofs made before us in this 
cause as aforesaid, the said Reverend John Bluck, 
neither having, as appears, any such license or exemp- 
tion from residence upon his said benefice as is allowed 
in the Act of Parliament aforesaid, nor being resident, 
as appears, upon any other benefice whereof he was 
possessed, did absent himself from his said benefice of 
Walsoken for a period exceeding three months and not 
exceeding six months of and in the year beginning 
and ending respectively the first day of January and 
the thirty-first day of December, one thousand eight 
hundred and forty-two, to wit, from, on, or about the 
twenty-ninth day of August, to the said thirty-first day 
of December of the said year. 

Wherefore and by reason of the premises we decree 
and declare that the said Reverend John Bluck ought 
to be pronounced to have forfeited one-third part of 
the annual value of his benefice of Walsoken afore- 
said, and we do by these presents so pronounce 
accordingly, and we do by these presents condemn 
him, the said Reverend John Bluck, in the payment of 
such third 'part of the annual value of his benefice of 
Walsoken aforesaid, together with the reasonable ex* 
pense incurred by or on behalf of the said Matthew 
Rackham in the recovery of the same in this cause, 
the amount of such third part of the annual value of 
his said benefice of Walsoken and of such reasonable 
expense to be ascertained in the usual and accustomed 
manner by the registrar of our said court. And we do 
compel him, the said Reverend John Bluck, to the due 



GRANT OF A FACULTY. 

payment of the said amount so ascertained of such 
third part and expenses by this our definitive sentence 
or final decree^ which we give and promulge by these 
presents^ this first day of July, in the year of our Lord 
one thousand eight hundred and forty-four. 

Charles Evans, Surrogate. 

After the signing of the sentence a reference is de- 
creed to the registrar, to ascertain the amount or value 
of the proportion of the annual value of the benefice 
which has been sued for. 



GRANT OF A FACULTY. 

To enable alterations of any importance or magnitude, 
such as the erection of galleries, pews, m oi^an, monu- 
ments, or tombs, to be effected in a church, application 
must be made to the ordinary and his permission 
obtained (r). Before granting tliis permission, which is 
denominated a faculty, the ordinary calls upon all per- 
sons having a right or interest, (i. e. the incumbent, 
churchwardens, and parishioners,) to shew cause why 
it should not be done, and he hears and determines on 
the force of any objections that may be made against it. 

(r) Maidman v. Malpas, Hafi^. Fhill. R. vol. 1, p. 232. Seager 

C. R. vol. 1, p. 208. Bardjn v. Bowie, Add. K. vol. 1, p. 554. 

and Edwards v. Calcott, ibid. Churchwardens of Saint John, 

pp. 14, 15, Graves and others v. Margate v. ParishionerSi Vicar, 

iCector and parish of Homsey, and Inhabitants ofthesamepa- 

ibid. p. 188. Tattersall v. Knight, rish, Hagg. C. R. vol. 1, p. 198. 



304 ECCLESIASTICAL CAUSES. 

The same course is pursued to obtain a confirma- 
tion of buildings already erected or alterations already 
made (s), 

A faculty must also be obtained before a monument 
can be legally removed (/), or a churchyard levelled (m). 

A faculty if once issued is good even against the 
ordinary himself (2'). 

The requisite parties are cited by means of a decree 
with intimation^ of which the following forms will afford 
the necessary precedents. 

Decree with Intimation. 

Decree with Charles Richard^ by Divine permission^ Bishop of 
lead a faculty. Winchester, to aU and singular, clerks, and literate 

persons, whomsoever and wheresoever, in and 
throughout that part of our diocese of Winchester 
which is in the parts of Surrey, greeting. 
Whereas, it hath been alleged and set forth before 
the Reverend John Evans, Clerk, Master of Arts, Sur- 
rogate of the Worshipful John Sayer Poulter, Bache- 
lor of Laws, our Commissary, in and for parts of 
Surrey, lawfully constituted on the part and behalf of 
the Reverend Edward Boulter, Clerk, Rector of the 
parish and parish church of Hambledon in the county 
of Surrey, and our diocese aforesaid, that certain 
repairs are required to the said parish church of 
Hambledon and that certain alterations are contem- 



(s) TbomaB and Hughes, v. (u) Sharpe and Sangster v. 

Morris, Add. R. vol. 1, p. 470. Hansard, Hagg. £. R. vol 3, 

(0 Maidman v. Malpas, Haeg. p. 335. 
C. R. vol. 1, p. 208. Hutchms (jr) Fuller v. Lane, Add. 2, 

and Denziloe v. Loveland, ibid. p. 431. 
vol. 1, p. 172. 



J 



GRANT OP A FACULTY. 305 

plated tJierein and that it is the intention of the said 
Edward Bullock^ Clerk, aided by the Right Honourable 
the Earl of Radnor, the patron of the living, to defray 
the whole expense of the said repairs and alterations. 
And whereas, it was further alleged that at a meeting of 
th& parishioners and inhabitants of the said parish, in 
vestry assembled, on the 10th day of March, in the 
present year of our Lord 1846, pursuant topublic 
notice previously given according to law, it having been 
proposed that certain repairs and alterations in the 
said church should be effected, and a plan and specifi- 
cation, marked No. 1 and No. 2, embracing such objects 
being then produced, it was unanimously resolved that 
the same should be adopted, and in verification of what 
was so alleged, an autibentic copy of the aforesaid reso* 
lution of the vestry, signed by the Reverend Geoige 
O. Lamotte, Clerk, the officiating minister of the 
said parish, marked with the letter A., and a copy of the 
plan referred to, marked No. 1, were produced and 
shewn to the said surrogate, and the same were brought 
into and now remain in the registry of our said court, 
as on relation being thereunto had will appear. And 
whereas it was further alleged that it was and is in« 
tended and determined, by the adoption of the said plan, 
and with a view to carry into effect the aforesaid resop 
lution of vestry, to take down and rebuild the south 
wall of the said church, and build up the north transept 
wall, and put on a new roof; to put buttresses to the 
church or chancel, and to make a new porch; to re tile 
the north side of the said church, and repair the chan- 
cel ; to put in four Bath-stone windows with new glass, 
and three Bath-stone windows with old glass, to put up 
two Bath-stone crosses, to take down galleries and erect 

X 



306 ECCLESIASTICAL CAUSES. 

two new galleries^ one at the west ^d for the use of 
adults^ and another in the north transept for the use of 
children ; to remove all the present pews and seats^ and 
to put np new seats, those in the nave, transept, and 
chancel to have oak stall ends and back rails ; to alter 
and refix the pnlpit and reading-desk, and to make such 
other repairs as may be necessary in and about the said 
church; and whereas it was further alleged that by 
carrying into effect the said plan, greater and more con- 
venient accommodation will be afforded in the said 
church, and that the said Edward Bullock, Clerk, is 
desirous of obtaining our license or faculty for the said 
repairs and alterations, and for ratifying and confirm- 
ing the same when completed; and whereas the said 
surrogate having duly considered the premises, and 
lightly and duly proceeding therein, did, at the petition 
of the proctor for the said Edward Bullock, Clerk, 
decree the churchwardens, parishioners, and inhabitants 
of the said parish of Hambledon, in special, and all 
others in general, having or pretending to have any 
right, title, or interest in the premises, to be dted, inti- 
mated, and called to appeiff in judgment, on the day at 
the time and place, in manner and form, and to the 
effect hereinafter mentioned, (justice so requiring,) we 
do therefore hereby authorize, empower, and strictly 
enjoin and command you, jointiy and severally, 
peremptorily to cite, or cause to be cited, the church- 
wardens, parishioners, and inhabitants of the said 
parish, in special, and all otiiers in general, having or 
pretending to have any right, tide, or interest in the 
premises, (by affixing for some time these presents on 
the outer door of the said parish church of Hambledon, 
in the county of Surrey, and by affixing and leaving 



GRANT OF A FACULTY. ^07 

tiiere affitec^ a troe copy hereof on the Sunday morning 
next and immediately foUonring the receipt hereof^) to 
appear personally, or by his, her, or their proctors or 
proctor, duly constitated, before our commissary afore* 
said, his sucrogate, or some other competent judge, in 
this behalf» in the parish church of Saint Saviour, 
Soathwark, in the county of Surrey, and place of ju- 
dicature there, on the sixth day after the service hereof, 
as aforesud, if it be a court-day; otherwise on the 
OHurt-day then next ensuing, at the hour of twelve 
o^dock in the forenoon of the same day, being the usual 
hour of hearing causes and doing justice there, then 
and there to shew good and sufficient cause, if they or 
any or either of them have or know any, why our license 
or faculty should not be granted to the said Edward 
BnUock, Clerk, for the repairs and alterations of the 
parish church aforesaid hereinbefore particularly men- 
tioned and set forth, and ratifying and confirming the 
same when completed; and further to do and receive, 
as unto law and justice shall appertain, under pain of 
the law and contempt thereof, at the promotion of the 
said Edward Bullock, Clerk ; and, moreover, that you 
mtimate, or cause to be intimated, to the said church- 
wardens, parishioners, and inhabitants of the said 
parish in special, and all others in general, having, or 
pretending to have, any right, title, or interest in the 
premises, (and to whom we do so intimate by the tenor 
of these presents,) tihat if they, or some, or one of them, 
do or doth not appear on the day, at the time and 
]dace, and to the effect aforesaid ; or appearing, do or 
doth not shew good and sufficient cause concludent in 
law to the contrary, our commissary aforesaid, his sur- 
rogate, or some other competent judge in this behalf, 

x2 



308 ECCLESIASTICAL CAUSES. 

doth intend to proceed and will proceed to decree and 
grant such our license or fectdty to the said Edward 
BuUock, Clerk, for the purposes, to the effect, and in 
manner aforesaid, the absence or rather contumacy of 
the persons so cited, and intimated in any wise notwith^ 
standing ; and what you shall do or cause to be done in 
the premises, you shall duly certify our said commis- 
sary, his surrogate, or some other competent judge in 
this behalf, together with these presents. Given under 
the seal of our commissary, which we use in this behalf, 
this 7th day of April, in the year of our Lord 1B46, 
and in the nineteenth year of our translation. 

Decree with Intimation. 

Decree with Charles Richard, by Divine permission Bishop of Win- 
intimation to -I . . 11 J . 1 11 11. 

lead faculty. Chester, to all and smgular clerks and uterate per- 

sons, whomsoever and wheresoever, in and through- 
out that part of the diocese of Winchester which 
is within the county of Surrey, greeting : 
Whereas it hath been alleged and set forth before the 
Reverend John Evans, Clerk, Master of Arts, Surrogate 
of the Worshipful John Sayer Poulter, Bachelor of 
Laws, our commissary in and for the parts of Surrey 
lawfully constituted, on the part and behalf of John 
Weaver and John Davis, churchwardens of the parish 
of Shalford, in the said county of Surrey, and our dio- 
cese aforesaid, that the parish church of Shalford afore- 
said is in a decayed and dilapidated condition, and the 
accommodation therein is insufficient for the pa- 
rishioners and inhabitants thereof; by reason whereof 
several meetings of the said parishioners and inhabi- 
tants, in vestry assembled, have been held, and a com-» 



GRANT OF A FACULTY. 309 

mittee appointed to consider the propriety of enlarging 
the said church, which committee has recommended 
that the said parish church, instead of being enlarged^ 
should be rebuilt, and at a meeting o^ the said 
parishioners and inhabitants, assembled in vestry, held 
on the 20th day of February, in the present year 1846, 
pursuant to public notice, first duly g^ven, to take into 
consideration the expediency of rebuilding the parish 
church aforesaid, instead of enlarging the same, it was 
at such vestry (amongst oliier things) unanimously de- 
cided that it should be done, and a plan of fiuch new 
phurch was submitted for approval, and such plan was 
adopted, subject to any trifling alterations which it 
might be thought expedient to introduce. And whereas 
it was further alleged that certain plans and spedfica* 
tions have been made, wherein the arrangement of the 
contemplated new sittings, including the free sittings 
in the said new church, are laid down, and which plans 
and specifications have been submitted to and approved 
of .by the Diocesan and Incorporated Church Building 
Societies, and tixe seal of the latter has been affixed 
thereto, and that there is not any faculty-pew in the 
said old church, (as in and by a copy of the minute of 
the said vestry meeting, and a certificate or instrument 
in writing signed by the Reverend H. B. Shortland, 
Clerk, the offidattng minister of the said parish of Shal- 
ford, brought into and now remaining in the registry 
of the court of our said commissary, on relation being 
thereunto had, will appear.) And whereas it was fur-* 
ther alleged that in pulling down the old parish church 
it will be necessary to take down and remove certain 
monuments or tablets within the said old church, and 
also certain tablets and head and foot-stones on the 



310 ECCLESIASTICAL CAUSES. 

outside^ or without the walls thereof^ and that it may be 
also expedient to remove some coffins deposited in the 
ground^ either within or without the said walls^ and it 
is proposed that so much of the materials of the said 
old church as can be used in the building of the said 
new church shall be used for that purpose, and that 
other of the materials shall be sold and the proceeds 
arising from such sale be appropriated towards defiray- 
ing the expenses of building the said new church, and 
that it is intended forthwith to take down the said old 
church, and with our consent, and by the assistance of 
the Diocesan and Incorporated Church Building Socie- 
ties and otherwise, to build a new parish church on the 
site of the old parish church ; and upon the said new 
church being built, to affix on the walls thereof the 
various monuments or tablets now in the said old 
church and those on the outside thereof, (if any,) and 
also to replace the head and foot-stones and coffins as 
near as possible to the site or place they now occupy. 
And whereas the surrogate aforesaid having duly con- 
sidered the premises, and rightly and duly proceeding 
therein, did, at the petition of the said John Weaver 
and John Davis, decree the vicar, parishioners, and in- 
habitants of the said parish of Shalford in special, and 
all others in general, having or pretending to have any 
right, title, or interest in the premises, to be cited^ inti- 
mated, and called to appear in judgment on the day, 
at the time and place, to the effect and In manner and 
form as hereinafter mentioned, justice so requiring. 
We do hereby authorize, empower, and strictly en- 
join and command you, jointly and severally, peremp- 
torily to cite, or cause to be cited, the vicar, parishioners, 
and inhabitants of the said parish of Shalford in special, 



GRANT OF A FACULTY. 311 

and bU others in general, having, or pretending to have, 
uiy right, title, or interest in the premises, (by affixing 
for some time these presents on the outer door of the 
parish church of Shalfbrd aforesaid, and by affixing and 
leaving there affixed a true copy thereof on the 
Sunday morning next and immediately following 
the receipt hereof,) to appear personally, or by his> her, 
or their proctor or proctors, duly constituted, if he^ 
she, or they shall think it their interest so to do, before 
our commissary aforesaid, his surrogate;, or some other 
competent judge in this behalf, in the parish church of 
Saint Savioiu*, Southwark, and place of judicature there, 
on the sixth day after the service hereof, if it be a 
court-day, otherwise on the couit-day then next ensu* 
ing, at the hour of twelve o'clock in the forenoon of * 
the same day, beiag the usual hour of hearing causes 
and doing justice there, then and there to shew good 
and sufficient cause, if they, or any, or either of them 
have or know any, why our license or faculty should 
not be granted to the said John Weaver and John 
Davis, for the purpose of pulling down the old parish 
church of Shalford aforesaid, and for building a new 
parish church on the site thereof, and for the removal 
and replacing of various monuments, tablets, head and 
foot-stones, and coffins, heireinbefore particularly men- 
tioned and set fcnrth, and for ratifying and confirming 
the said new church, when built, as the parish church 
of the said parish of Shalford, in lieu of such old parish 
church ; and further to do and receive as unto law and 
justice shall appertain, under pain of the law and con- 
tempt thereof, at the promotion of the said John 
Weaver and John Davis ; and moreover that you inti- 
mate or cause to be intimated to the vicar, parishio- 



312 ECCLESIASTICAL CAUSES. 

ners, and inhabitants of the said parish of Shalford, in 
special^ and all others in general^ having or pretending 
to have any right, title, or interest in the premises, (to 
whom we also intimate by the tenor of these presents,) 
that if they, some, or one of them do not appear on the 
day, at the time and place, and to the effect aforesaid, 
or, appearing, do not shew good and sufficient cause, 
concludent in law, to the contrary, our commissary 
aforesaid, his surrogate, or other competent judge in 
this behalf, doth intend to proceed and will proceed to 
decree, commit, and grant such our license or faculty 
to the said John Weaver and John Davis, for the pur- 
poses and to the effect aforesaid, the absence or rather 
contumacy of the persons so cited and intimated in any 
wise notwithstanding ; and what you shall do or cause 
to be done in the premises you shall duly certify our 
said commissary, his surrogate, or other competent 
judge in this behalf, together with these presents. 

Given under the seal of our said commissary, which 
we use in this behalf, and dated at London, this, &c. 

* 

The decree having been served in the manner men- 
tioned therein, is returned into court, and on the fol- 
lowing day, if no appearance be given on behalf of any 
of the parties cited with a view to contest the question, 
the faculty is granted by the judge or surrogate, and 
goes under seal, in the tenor contained in the decree. 



313 



MATRIMONIAL CAUSES. 



The Ecclesiastical Court has jurisdiction in all cases 
with respect to the marriage of English subjects^ where- 
erer celebrated^ and it will sometimes examine the 
question of a foreign marriage in the case of an alien. 

Matrimonial salts may be divided into the following 
classes :^-diyorce^ or separation a menad et thoro ; jac- 
titation^ or false and malicious boasting of marriage; 
the restitution of conjugal rights ; and the nullity of 
the nuptial bond or contract. 



DIVORCE BY REASON OF ADULTERY. 

On a violation of matrimonial duty^ by tiie commission 
of adultery^ ^^ ^^ P*"^ either of the husband or wife^ 
the innocent partner has a daim to the relief which the 
Edclesiastical Court affords^ in granting a separation 
from the guilty individual, and thereby totally suspend- 
ing the relation of husband and wife (a) ; and all per- 
sons who stand in that legal relation are entitied to the 

(a) D'Aguilar v. D'Aguilar, Hagg. l, p. 773, Supplement. 



314 MATRIMONIAL CAUSES. 

same right. Accordingly^ notwithstanding the wide 
difference of the marriage ceremonies under the Chris* 
tian and Jewish laws^ yet, as the liabilities and mutual 
duties are considered the same(i)^ Jews are equally 
allowed to sue for a similar protection in the Court 
Christian. Nor is the privilege confined to persons 
who, haying the full possession of thdr reason, can 
apply in their own name and person, but in the case 
of a lunatic, whose consort has committed an act of 
adultery, the committee is enabled to institute an 
action on his behalf, and obtain for him the aid of this 
court (c). 

Such a remedy being afforded by the English law, in 
the above-mentioned cases, I will next consider the 
principles which direct the court in receiving the evi- 
dence necessary to fix upon the offenders the liability 
of their guilt ; and the evidence is unavoidably of a pe- 
culiar kind, for direct proof of adultery is not required, 
as it would render relief almost impracticable (tf )• 

Proximate circumstances are sufficient, provided tiie 
fact of criminality can be fidrly inferred .firom them as 
a necessary conclusion. What the circumstances are 
whiph lead to such a condusion cannot be laid down 
universally, as they may be infinitely diversified by tiie 
situation and ohamcter of the parties, by the state of 
general manners, and by many otiier incidental circum- 
stanees, apparentiy slight and delicate in themselves, 
but which may have most important bearings in deci- 
sions on the particular case. 



(b) D'Aguilar v. D'Aguilar, (d) Wflliams ▼. Williams, 

Hagg. 1, p. 773, Supplement. Hagg. C. R. 1, p. 299. Loven- 

(f ) Pamell v. Parnell, Hagg. den v. Lovenden, Hagg. C. R. 2, 

C.R. 3, p. 169* Phill. 2, p. 158. pp. 2, 3. 



DIYORCB BY REASON OF ADULTER Y, 315 

It IB Bot idways necessary »to pioTe the fact of adul- 
tery (e) in time and plaoe^ vis., at any particular hour^ or in 
any paiticalar room. General cohabitation wiU conclude 
the parties. For it is saffident if the court can infer 
the conclusion firom other circumstances^ between per» 
sons liying in the same house^ though not seen in the 
same bed, or in any equivocal situation (/) ; but the 
oourt must be satisfied that actual adultery has been 
committed^ as it cannot separate on improper conduct 
which fedla short of that. 

The first point necessary to be proved in a suit of 
this kind is the marriage, as without that there necessa- 
rily can be no adultery ; and the sentence of the court 
pronounces diat there has been a true and lawful mar- 
riage, as well as a violation of it iff). 

The identity of the parties, a point often of great dif- 
ficulty in these cases, firom the clandestine nature of 
the actions, must be proved not merely by acknowledg- 
ment to the officer who serves them with the citation, 
and by the appearance in the cause, but by extrinsic 
evidence (A). 

til regard to the number of witnesses^ two are re- 
quired, but, as in other ecclesiastical causes, those two 
are not strictiy required both to speak to the same fact; 
for it is hdd sufficient to found a sentence of divorce if 
tiie witnesses depose to two distinct fi&cts (t). 

(«) Lovenden y. Lovenden, (e) Guest ▼. Shipley, Hagg. 

Hagg. C. R. 2, p. 345. Burgess C. R. 2, p. 322. Mayhew ▼• 

y. Burgess, ib. p. 226. Mayhew, Phill. 2, p. 14. 

» (/) Hamerton y. Hamerton, (A) Williams y. Williams, 

Hagg. 2, p. 14. Rix y. Riz, Ha^. C. R. 1, p. 305. 

Hagg. 3, p. 74. (0 Crompton v. Butler, Hagg. 

C. R. 1, p. 462. 



31G MATRIMONIAL CAUSES. 

I will now consider in detail the drcnmstances from 
which the inferences of criminality may be drawn. 

Adultery may be inferred £rom general conduct alone, 
provided the circumstances be sufficient to create a vto- 
lerU suspicion. 

Statements of general loose and unduly familiar con- 
duct wiU establish a high and undue degree of fami- 
liarity between parties ^it). Isolated and detached facts 
may lead to a conclusion of crime^ for the proper way 
to consider this sort of evidence is, not to take them 
separately, but in conjunction ; they mutually interpret 
each other ; their constant repetition gives them a de* 
terminate character, and such habits, when continued 
in public, lead to the inference that the parties would 
go greater lengths if opportunities of privacy oc- 
curred. Such grossi indecorous, and improper fami- 
liarities, with opportunities of privacy, advance to the 
footing of proximate acts ; and if the privacy shewn 
be frequent, the court will infer the commission of the 
crime* 

Where a criminal connexion has been once shewn^ 
its continuance is presumed, if the parties live under 
the same roof (/). 

Proximate feusts next require consideration. Those 
facts are so called from which the legal conclusion of 
adultery is immediately deducible, and the court, repre- 
senting the law, draws the inference which the proxi- 
mate acts unavoidably lead to (m). 

(k) Burgess v. Burgess, Hagg. fm) Elwes v. Elwes, Hagg> 
C. R. 2, p. 228. C. R. 1, p, 278. 

(/) Turton v. Turton, Hagg. 
R. 3, p. 350. 



DIVORCE BY REASON OF ADIfl^TERY. 3l7 

General cohabitation is enough to found a sentence 
of divorce (»), and excludes the necessity of proof of 
particular &cts ; and where the parties live in the same 
house, though under the bare appearance of separate 
beds^ separation must follow {o). If the adultery has 
continued for many years, attended with pregnancy and 
birth of a child, during the husband^s absence from 
Great Britain, it is aoly necessary to prove the birth of 
the child, identity, and non-access [p] ; but it must be 
shewn that there was nothing that necessarily affected 
the innocent party with a knowledge of such circum- 
stances {q). 

The circumstance of a woman going to a brothel 
with a man furnishes conclusive proof of adultery, as it 
would be almost impossible for a woman to go to such 
a place but for a criminal purpose (r). Venereal dis- 
ease long afler marriage is primd facie evidence of adul- 
tery (s). The husband's attempts, when affected with 
Tenereal disease, to force his wife to his bed is of a 
mixed nature, partly cruelty and partly evidence of 
adultery. 

Where letters are produced firom the wife to her 
paramour, the style of which leaves no doubt of 
gross familiarity and indulgence, and of proposals for 
future intrigues, they may be admitted as proof of 
adultery (/). 

(n) Lovenden ▼. Lovenden, (r) Eliot ▼. Eliot, in Williams 

Hagg. C. R. 2, p. 4. lb. p. 5, v. Williams, Hagg. C. R. \, p. 

Cadogan y. Cadogan, in note. 302. lb. Williams v. Williams, 

(o) Cbambers ▼. Chambers, p. 303. 

Hagg. 1, p. 445. (s) Durant v. Durant, Hagg. 

(p) Richardson v. Richardson, R. 1, p. 767, Supplement. 

Hagg. R. 1, p. 6.. (0 Lovenden v. Lovenden, 

(g) D*Agailar T.D'Aguilar, ib. Hagg. C. R. 2, pp. 21, 22, 23. 
p. 777. Supplement 



318 MATRIMOHIAL CAUSES. 

But where no indecent familiarities {s) or proxitnate 
acts were proved^ but letters only from the alleged pa- 
ramour^ which had been found in the wife's possesaon, 
were produced, but did not necessarily imply the com- 
mission of adultery, the circumstances were not held 
sufficient to support a sentence of divorce by reason of 
adultery. 

The confession of the adulterer or adulteress (y), when 
free from all taint of collusion, and confirmed by cir- 
cumstances and conduct, ranks among the highest 
species of evidence. But it must at the same time (^), 
and especially in consequence of the directions of the 
105th canon {nee pariium eanfessiofd fides habeatur) on 
all occasions be most accurately weighed. The following 
principles have been laid down, regxdating its reception 
in the consistories ; viz. — 

It cannot be admitted alone (a). It must not {b) be 
ambiguous. It need not apply to time and place (c). 

When made under fear of death (</), but afterwards 
retracted, it has been received agfdnst tlie party making 
the confession. 

The confession of the paramour (e) is evidence to 
prove the fact of adultery, and in a case where criminal 
intention is fully proved, and nothing but the consent 
of the other party is wanting, the conduct of such a 
person is evidence of a most stringent kind that 



(jr) Hamerton v. Hamerton, (6) Williams v. Williams, ib. 

Hagff. R. 2, p. 8. 1, p. 304. 

(y) Harris v. Harris, Hagg. R. (c) Burgess v. Burgess, ib. 2, 

2, p. 409. p. 227. 

(f) Williams v. Williams, (d) Mortimer ▼. Mortimer, ib. 

Hagg. C. R. 1, p. 304. 2, p. 315. 

(a) Searle v. Price, Hagg. C. (e) Soilleux v. Soilleui, ib. 2, 

R. 2, p. 189. Mortimer V. Mor- p. 376. 
timer, ib. 2, p. 316. 



DIVORCE BY RBAMV OF ADULTERY. Si 9 

the act which he w&s always atfempting has actually 
taken place. 

A declaration of the pananotDr(/), in the wife's ab* 
aence, that she had committed adultery is not admissi- 
ble^ but a declaration made in her presence and con- 
firmed by her is. 

A particeps criminU is a competent witness {g). 

I have considered it proper to make ihese preliminary 
observations respecting the most important prindples 
of law which apply to suits for divorce by reason of 
adultery^ before entering on the practical forms used 
therein. 

A suit of this nature commences by primary citation^ 
under seal of the matrimonial court, at the instance of 
the innocent consort. 

The citation is in the following form ; viz. : — 

Citation. 

Charles James^ by Divine permission Bishop of London, Citation for 
to all and singular clerks and literate persons, ^J^^q/ 
whomsoever and wheresoever, in and throughout adultery. 
our whole diocese of London, greeting : 
We hereby autiiorize, empower, and strictiy enjoin 
and command you, jointiy and severally, peremptorily 
to cite, or cause to be cited, Edward Heaviside, of the 
parish of , in the city of London, and our 

£ocese aforesaid, to appear personally or by his proc- 
tor, duly constituted, his surrogate, or some other 
competent judge in this behalf, in the Common Hall of 

(/) Croft V. Croft, Hagg. R, 2, (g) Forster v. Forster, Hagg. 
F318. C. R. l,p 148. 



320 MATRIMONIAL CAUSES* 

Doctors Commons, situate in the parish of Saint Bene- 
dict, near Paul's Wharf, London, and place of judicatare 
there, on the third day after he shall have been served 
with these presents, if it be a general session, by-day, 
extra or additional court-day of our said court ; other- 
wise on the general by-day, extra or additional court* 
day, then next ensuing, at the hour of the sitting of 
the court, and there to abide during its continuance, 
then and there to answer to Sarah Heaviside, his lawful 
wife, in a certain cause of diyorce or separation from 
bed, board, and mutual cohabitation, by reason of adul- 
tery by him, the said Edward Heaviside, committed; 
and further to do and receive as unto law and justice 
shall appertain, under pain of the law and contempt 
thereof, at the promotion of the said Sarah Heavbide, 
and what you shall do, or cause to be done, in the pre- 
mises, you shall duly certify our vicar-general and 
official principal aforesaid, his surrogate, or some other 
competent judge in this behalf, together with these 
presents. Dated at London^ this day of ^ 

in the year of our Lord 18 , and in the 
year of our translation. 

The libel is as follows : — 

Libel. 

Libel for di- In the name of God, amen, &c. 

wrAX ^^^^ "* *® months of June, July, and August, in the 
tery. year of our Lord one tliousand eight hundred and 

First twenty-five, the said Alexander Grant, Esquire, being 

then resident in Madras, in the East Indies^ a bachelor, 
and free from all matrimonial contracts and engager 



DIVORCE BT REASON OF ADULTERY. 321 

ments, made bis courtship in the way of marriage to 
the said Maria Theresa Grant, then Maria Theresa de 
Champ^ a spinster, and also free firom all matrimonial 
contracts and engagements, who received such the 
courtship of him, the said Alexander Grant, and con- 
sented to be married to him ; and that accordingly, on 
or about the twentieth day of the said month of August, 
one thousand eight hundred and twenty-five, they, the 
said Alexander Grant, who then was, and still is, a 
member of the Church of Scotland by law established, 
and Maria Theresa Grant, then Maria Theresa de 
Champ, were lawfully joined together in holy matri- 
mony according to the rites and ceremonies of the 
Church of Scotland by law established, at Madras afore- 
said, by the Reverend George James Lawrie, an or- 
dained minister of the Church of Scotland as by law 
established, appointed by the United Company of 
Monchants of England, trading to the East Indies, to 
offidate as chaplain within the presidency of Madras 
aforesaid, who then and there pronoimced them to be 
lawful husband and wife respectively. 

That firom and immediately after their marriage afore- Second. 
said, the said Alexander Grant and the said Maria 
Theresa Grant lived and cohabited together at board 
and bed, as lawful husband and wife ; and that they 
have had issue of their said marriage six children, two 
boys and four girls, all of whom are still living, save a 
boy very recently dead. That they so lived and coha* 
hited togedier at Madras aforesaid, and at other places 
in India, then at different places in this country, after- 
wards again (to wit, at Bombay and elsewhere,) in India, 
and at Macao, in China. That in the month of May, 
one &ousand eight hundred and thirty-seven, the said 

Y 



322 MATRIMONIAL CAUSES. 

Alexander Grant and his said wife left Macao for Eng- 
land^ where they arrived and were landed, to wit at 
Brighton, in the month of November in that year. 
That the said Alexander Grant then took a furnished 
house in Regency Square, Brighton, where he and his 
said wife also lived and cohabited as aforesaid, until the 
month of February, one thousand eight hundred and 
thirty-eight, when the said Alexander Grant finally 
ceased to live and cohabit with his said wife, for the 
reasons and under the circumstances hereinafter pleaded. 
And the party proponent doth expressly allege and pro- 
pound, that ever since their marriage aforesaid, the said 
Alexander Grant and Maria Theresa Grant (theretofore 
Maria Theresa de Champ, spinster,) have constantly 
owned and acknowledged each other as lawful wife and 
husband respectively ; and that as and for such they the 
said parties have ever suice been, and now are, com- 
monly accounted, reputed, and taken, by and amongst 
their relations, friends, and acquaintance. 
Third. That the said Alexander Grant and his said wife 

sailed from Macao as aforesaid, as passengers on board 
the merchant ship Lord Lowther, of which ship the 
said Alexander Grant was the sole owner; and that the 
said ship, during her said homeward voyage, was under 
the command of Arthur Vincent, formerly an officer in 
the service of the East India Company, whcxn the said 
Alexander Grant had appointed at Macao to take the 
command of her for and during such voyage. And 
the party proponent doth expressly allege and pro- 
pound, that shortly after the said ship had left Macao 
as aforesaid, the said Arthur Vincent, (who, previously 
to taking the command of her, had only been slightly 
acquainted with the said Alexander Grant and his wife, 



DIVORCE BY REASON OF ADULTERY. 323 



the said Maria Theresa Grant,) began to pay particular 
attentions to the said Maria Theresa Grant, who on her 
part encouraged and appeared pleased with the same ; so 
that they, the said parties, soon became upon a very 
intimate and familiar footing with each other. That 
frequently during the sud voyage, from and after such 
time, the said Arthur Vincent and Maria Theresa Grant 
sought occasions of being, and were alone together, 
nnknown to the said Alexander Grant, in the cuddy, 
and also in the dressing and sitting cabins of the said 
Maria Theresa Grant, and in other parts of the said 
ship, particularly at times when the said Alexander 
Grant was walking the deck, which he was in the daily 
habit of doing for hours at a time, or had retired to 
sleep, as was also his daily habit, to his own and his 
said wife's sleeping-oabin, after dinner. That on some 
occasions, when alone together, the said Arthur Vincent 
and the said Maria Theresa Grant were observed sit- 
ting close to and in earnest conversation with each other, 
and appeared much embarrased and confused on find- 
ing that they were so observed. That on other occa- 
rions the said Arthur Vincent was seen kissing and 
takii^ personal liberties with the said Maria Theresa 
Grant ; and that the whole conduct and demeanour of 
the said parties towards each other soon became and 
was such as to attract the notice of and be the topic of 
conversation amongst the mariners and others on board 
the said ship. And the party proponent doth expressly 
all^e and propound, that on some occasions of their 
being so alone together as aforesaid, they the said 
Arthur Vincent and Maria Theresa Grant had the car- 
nal use and knowledge of each others bodies, and 
thereby committed the foul crime of adultery. 

y2 



324 MATRIMONIAL CAUSES. 

Fourth. That a day or two previously to the said ship^ Lord 

Lowther's, arrival oflF Brighton^ in the month of No- 
vember, one thousand eight hundred and thirty-seven 
as aforesaid, the said Maria Theresa Grant said to the 
said Arthur Vincent, in the presence of Margaret 
Jamieson, one of her servants, (a nursery maid,) that 
she should like to hear from him how he found his 
intended bride, (it being generally known on board the 
ship that he was engaged to be married on his return 
to England,) when he got ashore. That shortly after, 
the said Maria Theresa Grant, being then alone with 
the said Margaret Jamieson, told her that the said 
Arthur Vincent had promised to write her a letter con- 
taining the requested information, but added, '^ that as 
Captain Grant,'' (thereby meaning the said Alexander 
Grant, her husband,) '^did not like the said Arthur 
Vincent, she had begged him to enclose such letter 
under a cover, addressed to her the said Margaret 
Jamieson/' And the party proponent doth expressly 
allege and propound, that whilst at the Norfolk Hotel 
at Brighton, where the said Alexander Grant and his 
said wife stayed for a few days after landing at Brigh- 
ton, as aforesaid, previously to their occupation of the 
aforesaid house in Regency Square, Brighton, the said 
Margaret Jamieson received a letter addressed to the 
said Maria Theresa Grant, (enclosed in a blank cover 
or envelope, addressed to herself,) and forthwith deli- 
vered such letter to her the said Maria Theresa Grant 
And the party proponent doth further allege and pro- 
pound, that such letter was written, addressed, and sent 
to her the said Maria Theresa Grant, by and from the 
said Arthur Vincent, as she herself aft:erwards ad- 
mitted to the said Margaret Jamieson; and that the 



DIVORCE BY REASON OF ADULTERY. 325 

same having been so written^ addressed, and sent to 
her^ was unknown to and kept a secret from her hus- 
band, the said Alexander Grant That the said letter, 
if not destroyed, now remains in the custody or pos- 
session of the said Maria Theresa Grant 

That the said Arthur Vincent went to Brighton on Fiflh. 
the said twentieth day of December last That he 
slept at the Albion Hotel there, and at about eleven or 
twelve o'clock on the following day proceeded to the 
house of the said Alexander Grant, in Regency Square, 
Brighton. That the said Alexander Grant was then 
absent therefrom, having gone to London on the day 
before. That the said Arthur Vincent being so told^ 
inquired for the said Maria Theresa Grant, and there- 
upon was shown up into the drawing-room, in front of 
the said house, where the said Maria Theresa Grant 
then was. And the party proponent doth expressly 
all^e and propound, that from such time until dinner- 
time on the same day, which was six o'clock, the said 
Arthur Vincent and Maria Theresa Grant were for the 
most part alone together, either in the said front 
drawing-room, or in a room called the back drawing- 
room adjoining thereto, and communicating therewith 
by folding doors; into which back drawing-room a sofa, 
which usually stood in the firont drawing-room, was 
removed by her the said Maria Theresa Grant's orders, 
at between one and two o'clock on that day by the ser- 
vant^ for whom she rang the bell at that time, and 
whom she then also ordered to bring up luncheon. 
And the party proponent doth further expressly allege 
and propound, that the said Arthur Vincent and the 
said Maria Theresa Grant, whilst so alone together on 
that day, had the carnal use and knowledge of each 



326 MATRIMONIAL CAUSES. 

Others bodies, and thereby committed the crime of 
adoltery. 

Sixth. That about one hour after the said Arthur Vincent's 

arrival at the house of the said Alexander Grant, as 
pleaded in the next preceding article, the said Maria 
Theresa Grant requested Robinson, spinster, 

an intimate friend of her's, who was then at the house 
on a morning visit, to take out her four eldest children, 
and the aforesaid Margaret Jamieson to take out the 
two younger children for a walk. That the children all 
went out accordingly witii the said Robinson 

and Margaret Jamieson, to wit, about twelve or one 
o'clock, on the said twenty-first day of December, and 
remained out until about two o'clock, when they 
returned home, it being their usual dinner-hour. And 
the party proponent doth further allege and propound, 
that the said Maria Theresa Grant had never requested 
the said Miss Robinson to take out any of her children 
on any other or former occasion. 

Seventh. That about four o'clock in the afternoon of the said 

twenty-first day of December, the servant of tiie said 
Alexander Grant, who was then going up stairs with a 
lighted stair-lamp, saw the said Arthur Vincent, the 
said Maria Theresa Grant, and her youngest child^ (of 
the age of four years only,) within her the said Maria 
Theresa Grant's bed-room — ^the bed*room door beiDg 
open at such time. Also that the said servant, about 
half an hour before dinner on the same day, went into 
the front drawing-room to attend to and see that the 
fire and table-lamp were burning. That the said 
Arthur Vincent and Maria Theresa Grant were not in 
the said front drawing-room at such time, but were 
seen by the said servant sitting together in the back 



DIVORCE BY REASON OF ADULTERY. 3^7 

drawmg-room, (to wit, on the sofa which had been 
removed into it from the front drawing-room as afore- 
said,) in which back drawing-room there was neither a 
fire nor any kmp a-light— the said Arthnr Vincent's arm 
being round the waist of the said Maria Theresa Grants 
and the said parties at the time being in earnest con- 
versation with each otiier. That the said Maria Thesesa 
Grant, immediately on perceiving that they were 
so observed^ got up from the sofa and then gave the 
servant orders to light the lamp in l^e back drawing- 
room. 

That the said Arthnr Vincent dined at the house Eighth. 
of the said Alexander Ghrant, on the said twenty-first 
day of December^ and spent the evening there^ and 
also slept there on the night of that day. That, as 
for the purpose of his so doing, the said Maria Theresa 
Grant in the afternoon of that day told the aforesaid 
Maigaret Jamieson to hire a French bed for the night, 
of a person of the name of Hannah Stead, who acted as 
agent for the owner of the said house in Regency 
Square, and to have it put up for the said Arthur Vin- 
cent, in the dressing-room of the said Alexander Grants 
which was below stairs, and which sud bed was put up 
in the said dressing-room accordingly. That on the 
said night the said Arthur Vincent and the said Maria 
Theresa Grant were alone, naked together in one and 
the same bed, and committed adultery. 

That although it was usual for the said Alexander Ninths 
Grant and his said wife, whether diey were alone or 
had visitors, to break&st in their dining-room, the said 
Maria Theresa Grant, on the morning of the twenty- 
second of December, expressly desired that breakfast 
should be prepared for herself and the said Arthur 



328 



MATRIMONIAL CAUSES. 



Vincent in the back drawing-room. That the said 
Arthur Vincent and the said Maria Theresa Grant 
accordingly breakfasted alone together in the back 
drawing-room, and from such time remained for the 
most part alone together in such room until about two 
o'clock^ at which hour the said Arthur Vincent left 
Brighton for London by a stage-coach, in which, in the 
course of the morning, he had desired the man-servant 
of the said Alexander Grant to take him a place. And 
the party proponent doth expressly allege and pro- 
poimd, that whilst so alone together in the said back 
drawing-room, on the said twenty-second of December, 
they the said Arthur Vincent and Maria Theresa Grant 
had the carnal use and knowledge of each others 
bodies, and thereby committed the crime of adultery. 
Tenth. That the said Alexander Grant, on his return to 

Brighton a few days afterwards, was informed that the 
said Arthur Vincent had been at Brighton; that he had 
dined there one day with the said Maria Theresa Grant, 
and had called to take leave of her on the next day, 
previous to his return to London; but that he the said 
Alexander Grant was not informed, nor was at all 
apprized of any or either of the other circumstances 
connected with the said Arthur Vincent's visit to his 
said wife, hereinbefore pleaded, and in particular not 
that the said Arthur Vincent had, during his absence 
therefrom, slept or passed the night in his house. And 
the party proponent doth expressly allege and pro- 
pound, that the said Alexander Grant being about a 
few days after to settle an account with the aforesaid 
Hannah Stead, the said Maria Theresa Grant, in order 
to conceal from her said husband the fact of the said 
Arthur Vincent having so passed a night in his house. 



DIVORCB BY REASON OF ADULTERY. 329 

sent word to the said Hannah Stead not to mclude ia 
her said account the hire of the said bed^ which had 
been taken down and returned to the person from 
whom the said Hannah Stead had hired it on behalf 
of the said Maria Theresa Grant, on the same day 
that the said Arthur Vincent left Brighton as afore- 
said^ and promising herself to pay for the hire or 
use of the same, and which she afterwards did ac- 
cordingly. 

That the said Maria Theresa Grant, on or about the Eleventh, 
eighteenth day of January, one thousand eight hundred 
and thirty-eight, wrote, addressed^ and sent by the 
public post, a letter to the said Arthur Vincent, con- 
gratulating him, for herself and her husband, on his 
then recent marriage, of which they had just heard, and 
offering him a room at their house, if he could make it 
convenient to pay a passing vbit to Brighton, accom- 
panied by his bride. That the said Alexander Grant 
liad consented to his wife writing a letter of that tenor 
to the said Arthur Vincent, on her saying that it was a 
mere compliment that was due to him for his attention 
to them during their home voyage; and that such 
letter^ when written, was addressed to the said Arthur 
Vincent, at the Jerusalem Coffee-house in Comhill, 
London, (a coffee-house much frequented by persons 
connected with the East India shipping,) and where 
the said Arthur Vincent was accustomed to order 
letters to be directed to him, and to call and take the 
same. And the party proponent doth expressly allege 
and propound, that on the eighth day of February fol- 
lowing, the said Alexander Grant being in London at 
the said coffee-house on business of his own, in conse- 
quence of no answer haying been received to the said 



330 MATRIMONIAL CAUSES. 

letter^ so written by his said wife, and addressed as 
aforesaid^ examined the pigeon-holes or usual recepta- 
des at the said coffee-house, for letters addressed to 
subscribers^ and therein found the said letter, together 
with three other letters addressed to the said Arthur 
Vincent ; and, immediately recognizing the superscrip- 
tions thereon to be in the handwriting of his said wife, 
and it being wholly unknown to him that his said wife 
had ever written to the said Arthur Vincent any other 
than the letter hereinbefore pleaded, he then took pos- 
session of the same, and haying opened and partially 
read one of the said letters, was so much astonished 
and distressed at the contents thereof as to be unable 
to finish reading the same; and he thereupon imme- 
diately proceeded to the offices of his agents, Messrs. 
Gardner, Urquhart, and Company, Saint Helen's Place 
aforesaid, where he finished reading the aforesaid letter, 
and opened and read the o&ers, and, whilst he was so 
doing, and during his stay in the said offices^ was ob- 
served to be in a state of great agitation and distress ; 
but that the said Alexander Grant did not then dis- 
close to any person in the said offices either the tenor 
or contents thereof, or from or to whom they bad been 
written or addressed, or how he had obtained posses- 
sion of the same. And the party proponent doth fur- 
ther allege and propound, that the said three letters 
had been written, addressed, and sent by the public 
post, by the said Maria Theresa Grant, to the said 
Artiiur Vincent, on or about the twenty-third and 
twenty-ninth days of December and first day of Ja- 
nuary last, utterly unknown to the said Alexander 
Grant, her husband. That the &ct of such four letters, 
addressed to the said Arthur Vincent, being deposited 



DIVORCE BY REASON OF ADULTERY* 331 

for him in the said pigeon-hdes at the Jerusalem 
Coflfe&^house^ was weU known to Alexander Miller^^ the 
derk of the said ooflfee^house^ who had frequently seen 
the same tiierein. 

That in part supply of proof of the premises in the TwelfUi. 
next preceding article pleaded, and to all other intents 
and purposes in the law whatsoever, the party pro- 
ponent doih exhibit, hereto annex, and pray to be 
here read and inserted, and taken as part and parcel 
hereof, five paper writings, marked respectively Nos. 1, 
2, 3, 4, and 5 ; and doUi allege and propound the 
said exhibit No. 1 to be the original letter which was 
written, addressed, and sent by the said Maria Theresa 
Grant, by and with the consent of the said Alexander 
Grant, to the said Arthur Vincent, on or about the 
eighteenth day of January last ; and the said exhibits 
Nos. 2, 3, and 4, to be the three original letters which 
were written, addressed, and sent by the said Maria 
Theresa Grant, unknown to her said husband, to the 
said Arthur Vincent, as hereinbrfore pleaded. That 
the whole body, series, and contents of the said several 
exhibits Nos. 1, 2, 3 and 4 ; the subscription, ^^ Maria 
Grant/' to the said exhibit marked No. 1 ; and the 
subscriptions ^' M. G.^' to the »edd exhibits marked 
Nos. 2, 3, and 4, and the superscriptions thereon re* 
spectively, were and are of the proper handwriting and 
subscription of the said Maria Theresa Ghant, the 
party in this cause, and are so well known or believed 
to be by divers persons of good fidth and credit, who 
are well acquainted with her manner and character of 
handwriting and subscription, from having seen her 
write, and write and subscribe her name and the initial 
letters thereof to writings, or by other means. That 



332 MATRIMONIAL CAUSES. 

* 

by ^^ My dear Captain Vincent and " Captain Arthur 
Vincent,^' to whom the said exhibit No. 1 is addressed, 
and '^My dearest Aiihur/^ and ''Captain Yinoent," 
and ''Captain Arthur Vincent,'^ to whom the said 
exhibits marked Nos. 2, 3, and 4 are respectiyely ad- 
dressed, was meant and intended Arthur Vincent, who 
was the master or commander of the said ship Lord 
Lowther mentioned in several of the preceding artides 
of this libel, and with whom the said Maria Theresa 
Grant committed adultery, as therein pleaded. And 
the party proponent doth further allege and ptopound 
the said exhibit marked No. 5 to be a true and fidthAil 
notarial translation of such parts of the said exhibits 
Nos. 1, 2, 3, and 4 as are in the French language. 
Thirteenth. That on the day after the said Alexander Grant had 
become possessed of the said letters as aforesaid, to 
wit, on the ninth day of February, one thousand e^ht 
hundred and thirty-eight, he communicated his disco- 
Tery of the same and their contents to several of his 
friends then in London, by whose advice, in the even- 
ing of that day, he returned to Brighton, accompanied 
by John Macvicar, one of such friends, and by Thomas 
Whalley Bolton, his solicitor. That on the moming of 
the following day, to wit, the tenth day of the said 
month of February, the said Alexander Grant, accom- 
panied by the said John Macvicar and Thomas Whal- 
ley Bolton, went to his the said Alexander Grant's 
house, when the said Alexander Grant and John Mac- 
vicar immediately proceeded up stairs into the bed- 
room of the said Maria Theresa Grant, and other 
rooms, in order there to make search for any letters 
which the said Arthur Vincent might have written to 
her the said Maria Theresa Grant; whilst the said 



DIVORCK BY REASON 07 ADULTERY. 333 

Thomas Whalley Bolton was introduced unto and re- 
mained with the said Maria Theresa Grant alone in the 
dntwing-room. And the party proponent doth further 
expressly allege and propound, that the said Thomas 
Whalley Bolton having, in answer to inquiries then 
made by the said Maria Theresa Grant, as to the ooca^ 
sion of her said husband's return, and what was then 
going forward in the house, informed her of the detec- 
tion of her aforesaid correspondence with the said 
Arthur Vincent; she the said Maria Theresa Grant 
thereupon repeatedly^ and with much yehemence of 
manner, denied that she had ever written more than 
one letter, and that with and by her husband's- know- 
ledge and consent, to the said Arthur Vincent, and 
asserted that if there were any other letters purporting 
to have been written by her to the said Arthur Vincent, 
they were foigeries, or a conspiracy against her, or to 
that effect. That after some time the said Alexander 
Grant and John Macvicar joined the said Maria The- 
resa Grant and the said Thomas Whalley Bolton in the 
drawing-room, when the said Alexander Grant stated, 
as the fact was, that he had just discovered that the 
said Arthur Vincent had slept in his dressing-room on 
the twenty-first day of December last, as hereinbefore 
pleaded ; which the said Maria Theresa Grant did not 
deny. That he also then produced and shewed to the 
said Maria Theresa Grant the aforesaid letters or exhi- 
bits hereto annexed, marked Nos. 2, 3, and 4, on seeing 
which she, the said Maria Theresa Grant, said or ex- 
claimed, ^'Oh, I thought all these letters had been 
received ^^ £rom and after which she no longer denied 
having written the same, only declaring that she had 
never committed the crime (meaning of adultery) with 



334 



MATRIMONIAL CAUSES. 



Fourteenth. 



FifteenUi. 



the said Arthur Vmoent. And the party proponent 
doth farther expressly allege and prcqpound, that the 
said Alexander Grant, disbelieying sueh the'declarations 
of the said Maria Theresa Grant, hath never sinee co- 
habited with^ but hath lived wholly separate and apart 
firom his said wife. 

That shortly after the premises in the next preceding 
article pleaded, the said Alexander Grant brought his 
action in her Majesty's Court of Common Heas against 
the said Arthur Vincent, for the damages sustained by 
him^ by reason of the said 'Arthur Vincent's criminal 
conversation with his wife, the said Maria Theresa 
Grant. That the said Arthur Vincent not pleading to 
the said action, he, the said Alexander Grant, obtained a 
judgment against the said Arthur Vincent in defiiult 
thereof. That thereupon a writ issued from her Ma- 
jesty's said Court of Common Pleas, directed to the 
sheriff of the county of Middlesex, to inquire what 
damages the said Alexander Grant had sustained by 
reason of the premises complained of; and that an in- 
quisition was accordingly taken before Sir Gteorge Car- 
roU, Knight, and Sir Moses Montefiore, Knight, at 
the Sheriffs* Office in Red Lion Square, in the county 
aforesaid, sheriff of the said county of Middlesex, on 
the eighteenth day of April, one thousand eight hundred 
and thirty-eight, by a special jury duly impannelled and 
sworn ; by which jury the said damages were assessed 
at the amount of five hundred pounds^ besides costs. 

That in part supply of proof of the premises in the 
next preceding artide pleaded, and to all other intents 
and purposes in the law whatsoever, the party propo- 
nent doth exhibit and hereto annex, and pray to be 
here read and inserted^ and taken as part and parcel 



DIVORCE BY REASON OF ADULTERY. 



335 



heieixf, a certain paper writing marked No. 6 ; and doth 
aUege and propound the same to be and contBm a true 
copy of ihe final judgment given in the said cause lately 
depending in Her Majesty's Court of Common Reas 
between the said Alexander Orant and Arthur Vinoenti 
mentioned in the next preceding article. That the same 
has been fidthfully extracted from the original roll in 
the record office of tiie said court, and carefully collated 
with its original now remaining therein, and agrees 
dierewith. Hiat all and singular the contents of the 
said exhibit were and are true ; that all things were had 
and done as therein contained; and that Alexander 
Grants therein mentioned as the plaintiff, and Maria 
Theresa Grant, his wife, therein also mentioned as the 
person with whom tiie said Arthur Vincent, the defen- 
dant, had carried on a criminal correspondence, and 
Alexander Grant and Maria Theresa Grant, wife of the 
said Alexander Grant, the parties in this cause, were, 
and are the same persons, and not divers ; and that 
Arthur Vincent, against whom the said action was 
brought, and Arthur Vincent with whom the said 
Maria Theresa Grant committed the crime of adultery, 
as pleaded in several of the preceding articles of this 
Ubel, was and is one and the same person, and not 
divers. 

Pleads the residence of the said Maria Theresa Grant Sixteenih. 
in the district of Saint Mark, Kennington, in the county 
of Surrey, and diocese of Winchester, and province of 
Canterbury. 

Pleads the jurisdiction of the court. Seventeenth. 

That all and singular, &c. Eighteenth. 



336 MATRIMONIAL CAUSBS. 

The same proceedings are taken with regard to the 
admission of the libel, as in the causes before described. 
On its admission, the proctor for the defendant is bound 
by the canon to give a negative issue, in order to pre- 
vent the possibility of the parties colluding to deceive 
the court. He is also bound at the same time to admit 
or deny the marriage pleaded in the libel, and if such 
marriage is denied, a time is assigned to prove those 
articles only which plead it, and the question of mar- 
riage is decided before proof of the other facts is 
attempted. If the marriage is admitted, the usual 
term probatory is assigned to substantiate the averments 
of the libeL No answers can be taken to the alle- 
gations of adultery. 

Amongst the peculiarities of this proof may be classed 
the confrontation of the parties, which occasionally 
becomes necessary, in evidence of identity. 

This confrontation is enforced by a decree or process 
of the foUowii^ tenor : — 



Decree of Cor^rontation. 

Decree of Herbert Jenner Fust, Knight, Doctor of Laws, Official 
toon. Princii)al of the Arches Court of Canterbury, law- 
fully constituted. To all and singular clerks and 
literate persons, whomsoever and wheresoever, in 
and throughout the whole province of Canterbury, 
greeting : 
Whereas we, righfly and duly proceeding in a cause 
of divorce or separation from bed, board, and mutual 
cohabitation, by reason of adultery, now depending 
before us in judgment, by virtue of letters of request 
under the hand and seal of the Very Reverend Thomas 



DIVORCE BY REASON OF ADULTERY. 337 

Hill Loire^ Clerk^ Master of Arts, Dean of the Cathe- 
dral Church of Saint Peter, in Exeter, lawfully consti- 
tuted, between George Savage Curtis, of the parish of 
East Teignmouth, in the county of Devon and peculiar 
jurisdiction of the Venerable the Dean and Chapter of 
the Cathedral Church of Saint Peter, in Exeter afore- 
said, the party promoting the said cause on the one 
part, and Emma Curtis, his lawful wife, of the same 
parish^ county, and peculiar jurisdiction, the party ac- 
cused and complained of, on the other part, have, at the 
petition of the proctor of the said George Savage 
Curtis, alleging that it is necessary that the said Emma 
Curtis should be confronted with divers credible wit- 
nesses^ to be produced, sworn, and examined touching 
the matters at issue in the said cause, decreed the said 
Emma Curtis to be cited and called to appear in judg- 
ment on the day, at the time and place, to the effect and 
in manner and form hereuiafter mentioned (justice so 
requiring). We do, therefore, hereby authorize, em- 
power, and strictly enjoin and command you, jointly 
and severally, peremptorily to cite, or cause to be cited, 
the said Emma Curtis to appear personally before us, 
our surrogate, or some other competent judge in this 
behalf, in the Common Hall of Doctors' Commons, 
situate in the parish of Saint Benedict, near Paul's 
Wharf, London, and place of judicature there, on the 
by-day after Trinity Term, to wit, Monday, the twenty- 
fourth day of June^ one thousand eight hundred and 
forty-four, at the hour often in the forenoon, and there 
to abide, if occasion require, during the sitting of the 
said court, then and there to undergo a confrontation • 
with divers credible witnesses, to be in this cause then 
and there produced and sworn ; and further to do and 

z 



338 MATRIMONIAL CAUSES. 

receive as unto law and justice shall appertain^ under 
pain of the law and contempt thereof^ at the promotion 
of the said George Savage Curtis ; and what you shall 
do, or cause to be done, in the premises, you shall duly 
certify us, our surrogate, or somcother competent judge 
in this behalf, together with these presents. 

Dated at London, this fourth session of Trinity 
Term, to wit, Saturday, the fifteenth day of June, in 
the year of our Lord, one thousand eight hundred and 
forty-four. 

After the fact of marriage has been admitted or proved, 
the husband is compelled in this and all other mattimo- 
nial suits, either of divorce or nullity, to aliment or pay 
for the maintenance of his vnfe, pendente lite, as well as 
the costs of the suit (A). 

There is no fixed rule as to this allowance («), which 
is technically called alimony, though it is usually about 
one-fifUi of the annual income of the husband. The 
proportion, however, may vary according to the circum- 
stances of the parties, being in the discretion of the 
court. 

The allowance is less than that granted for perma- 
nent alimony (^), the wife being bound to live, during 
the dependence of the suit, in a state of retirement or 
seclusion. 

If the parties cannot agree upon tiie amount, appli- 
cation must be made to the court for a judicial allot- 
ment. To enable the court to do so, the wife must file 

(A) Bird V. Bird, Lee R. 1, (i) Rees v. Reei, PhilL R 3, 
p. 209. Smyth v. Smvth, Add. o. 389. Hawkes y. Hawkes, 
It. 2, p. 254 ; Add. R. 3, Hagg. R. 1, p. 526. 
p. 63. (^ Rees v. Re^ ante. Ot- 

way T. Otway, Hiill. 2, p. 109. 



DIVORCE BY REASON OF ADULTERY. 339 

an allegation of faculties, or a plea explanatory of her 
husband's means and fortune* This allegation is in the 
following form ; viz,:-- 



Allegation of Faculties. 

In the Consistory of London. Allegation 

On the fourth session of Micbaehnas Term, to wit, «^^~5«'^««- 
Friday the 6th day of December, 1844. 

Lbosb agamit Jjiloqii^ 

On which day Onne, in the name, and as the lawful 

proctor of the said Sarah Legge, the lawful wife of 

Henry L^gge, and under that denomination, and 

by all betler and more effectual ways and means, 

and to all intents and purposes in the law which 

may be most beneficial to his said party, said, 

alleged, and in law articulately propounded, as fbl^ 

lows, to wit. 

That the said Henry Legge has for many y^ars, and Flnt. 

now continues to carry on, at Nos. 143 and 144, Old 

Street, in the parish of Saint Luke, in the county of 

Middlesex, the trade or buaness of a manufacturer of 

and dealer in cigars. That he employs^ or lately emr 

ployed^ in the said trade, one shopman, one porter, and 

twenty apprentices, and also a man to OYcrlook the said 

apprentices; and that he also employs two commission 

tmvellers. That the net annual income and profits 

arising from such business, after deducting all expensep 

of carrying on same and other outgoings, amount on 

an aYcrage to the sum of £1,000 or £800 per annum, 

or thereabouts, or at least £600, or some other laige 

sum of lawful money of Great Britain; and this wa^ 

and is true, pubUo, and notorious ; and so much the 

z 2 



340 MATRIMONIAL CAUSES. 

nid Henrjr Lcgge doth knofw in his conscienoe to be 
true; and the party proponent doth aDegeand propound 
of any other annual income as shall appear from the 
lawM proo& to be made in this cause, and erery thing 
in this and the sobseqaent articles of this aIIq;ation 
contained, jointly and aereiBlly. 

S«««d. That the said Henry Legge now is or lately was 

possessed of cash in the hands of bankers, or other 
persons in trost for him, and also in his own possession, 
amounting in the whole to the som of JBl^OOO, or some 
other large som of lawfnl money of Grieat Britain; and 
this was and is tme, public, apd notorious ; and the 
party proponent doth all^e and propound as before. 

Hurd. That divers persons are in debt to the said Henry 

L^ge in sereral sums of money, amounting in the 
whole to the sum of £5,000, or at least £2,500, or some 
other large sum of lawful money of Great Britain; and 
this, &C. 

Fourth. That the said Henry Legge now is or lately was pos- 

sessed of a valuable stock in trade for carrying on his 
aforesaid business of a cigar manu&ctorer, amounting 
in value to the sum of £2,000, or some other large sum 
of lawful money of Grreat Britain ; and this, &c. 

^^^^ That the said Henry Legge now is or lately was pos- 

sessed of household furniture, plate, linen^ china-waie, 
horses, and other eflfects, altogether of the value of £200, 
or thereabouts, of lawful money of Oreat Britain ; and 
this^&c 

Sbcth. That the said Henry L^ge is possessed of, or enti- 

tled to, several capital sums of money standing in Us 
own name, or in the name or names of some other per- 
son or persons, in trust for him, in some or one or more 
of the public stocks, fiinds, or securities, or the stock of 



DIVORCS BT REASON OF ADULTERY. 341 

the Bank of England^ or of the East India Company^ 
or some other security^ to the amount altogether of the 
sum of £1^000, or some other sum^ of lawful money of 
Great Britain ; and this, &c. 

That all and singular the premises were and are true. Seventh. 
public, and notorious ; and so forth. 



In the Arches Court of Canterbury. Allegation 

On, &C. of faculties. 

Kbmpb offomst KsMPB. 
On which day, &c. 

That the said John Arthur Eempe, the other party in Pint 
this cause, was and is entitled to, and receives, full pay 
as a Colonel in the service of the Honourable the East 
India Company, and is also Commander or Governor of 
some fort or station in the East Indies, and derives 
therefirom an annual income of JSl,500, or thereabouts, 
dear of all deductions ; and this, &c. 

That the said John Arthur Kempe was and is pos- Second. 
sessed of fireehold, copyhold, and leasehold estates, 
houses, lands, tenements, or hereditaments, in or near 
the county of Cornwall, from which he derives an in- 
come of £600, £500, or at least £400 yearly, and every 
year, clear of all deductions ; and this, &c. 

That the said John Arthur Kempe was and is pos- ThircL 
sessed of monep invested in some or other of the 
public funds, and at interest, on mortgage, or other se- 
curity, amounting in the whole to the sum of £30,000, 
£25,000, or at least £20,000, and from which he, the 
said John Arthur Eempe, derives yearly and every year 
an income*of £1,500, £1,250, or at least £1,000, clear 
of all deductions whatever ; and this, &c. 



342 MATRIMONIAL CAUSES. 

Fourth. That the said John Arthur Kempe was and is pos- 

sessed of moneys at his bankers, household furniture, 
plate, wines, horses, and carriages, and other personal 
estate to the amount or value of JS6,000, J£5,500, or at 
least £5,000 ; and this, &c. 

Fifth. That all and singular, &c. 

This allegation having been brought in and admitted, 
the answers of the husband are decreed. These are 
generally accepted by the wife(/), though she is not 
compelled to acquiesce in the valuation of her husband, 
and may examine witnesses if she thinks proper. 

By these answers (m), which are taken strongly 
against the respondent and other evidence, (if brought 
in, though^die latter is discounted,) the court is guided 
in making an allotment of alimony, winch is generally 
decreed (n) to commence from the return of the citation, 
unless where the latter has been improperly delayed. 

All stuns paid . subsequently to Aat. return (o) are 
allowed as in part payment of the alimony. 

In appeals (p), alimony is usually ^cn from the date 
of tlie sentence and the appeal, provided due diligence 
has been exerted ; but otherwise from the return of the 
inhibition. 

Alimony {q)^pe9utenie lite, may be reduced on proof 
that the husband is no longer in a condition to aliment 
his wife at the rate originally assigned^ by the court 

(Q BriBco T. Boaco, Hagg. C* (o) Hamerton v. Hamerton, 

R. vol. 2, i>. 200. ^^&' R- ▼ol. ly p. 83. 

(m) Robinson ▼. Robinson, (p) Loveden v. Loyeden, 

Lee's R. voU 3, p. 593. PhiU. R. vol. 1, p. SIO. 

(n) Loveden v, Loveden, PhiU. (g) Cox v. Cox, Add. R. vol. 3, 

R. vol. 1, p. 209. Bain v. Bain, p. 276. De Blaquiere v. Ka- 

Add. R. vol. 2, p. 253. quiere, Hagg. R. vol. 3, p»332. 



DIVORCB BY B£A80N OF ADULTERY. 343 

And in Uke manner (r), it is subject, on appeal^ to the 
revision of the superior tribunaL 

However small^ precarious^ or uncertain the income 
of the husband may he, it is^ notwithstanding, always 
liable to a deduction for alimony. The only exemption 
that occurs is on the husband suing in/ormapimperia» 

There is one occasion (s), however, where the court 
suspends its decree ; viz., when the wife is in possession 
of money or other valuables belong^g to the husband^ 
and will not deliver up or otherwise account for them. 
Until this is done, the court will make no order for 
alimony. 

All arrears of alimony and costs (/) mu3t be paid up 
before the cause comes for hearing. The usual assig- 
nation under these circumstances, is to hear the cause, 
on costs and dUmom/ being first paid. 

The same proceedings can be adopted in these suits, 
as I have described as applicable to criminal suits, in 
r^ard to counterpleading, &c. 

The bars to a divorce, on the ground of adultery, are 
chiefly, condonation (u) of, or acquiescence {w) in, the 
conduct of the accused party, or actual adultery on the 
part of the promoter (y). 

When the cause is assigned for hearing, the party 
prosecuting, (if the husband,) is required by the canon 
to give the following bond in one hundred pounds with 
one surety. 

(r) Street ▼. Street, Add. E. (0 Bird v. Bird. Lee's R. 

vol. f, p. 1. voL 1, p. 572. 

(s) Lloyd T. Lloyd, 7th Au- (ti) ferrers v. Ferrers, Hagg. 

gust, 1839» Corn, of London. C. R. 1,p. 130. 

An application for alimony was (x) Crewe v. Crewe, Hagg. 

rejected until the wife should ac- R. 3, p. 125. 

count for certam securities de- ( v) Forster v. Forsterj Hagg. 

posited with her hy the husband. C. R. 1, p. 147. 



344 MATRIMONIAL CAUSES, 



Bond. 

Bond of tlie Know all men by these pesents, that we, A. B., 
promoter. ^^ ^^ ^ ^ ^ 

are become bound unto the Right Honourable Stephen 
Lushington, Doctor of Laws, Vicar-General of the 
Right Reverend Father in God, Charles James, by 
Divine permission. Bishop of London, and Official 
Principal of the Consistorial and Episcopal Court of 
London, lawfully constituted, in the sum of one hun- 
dred pounds of lawful money of Great Britain, to be 
paid to the said Stephen Lushington, his executors, or ' 
administrators, for the good and faithful payment of 
which sum we bind ourselves, our heirs, executors, and 
administrators, firmly by these presents. 

Dated at London, the day of in 

the year of our Lord 1846. 

The condition of this obligation is such that whereas 
there is about to be given or may be given, in the said 
Consistorial and Episcopal Court of London, a defini- 
tive sentence of divorce or separation firom bed, board, 
and mutual cohabitation with C. F., on behalf of the 
SBid A. B. 

If, therefore, the said A. B. shall not at any time 
hereafter intermarry with any other person during the 
lifetime of the said E. F., then this obligation to be 
void, or else to remain in full force and virtue. 

Signed, sealed, and delivered, (being first duly 
stamped,) in the presence of, &c. 

If the party prosecuting, is the wife, a man is re- 
quired to execute the bond in her stead. 



DIVORCE BY REASON OP ADULTERY. 345 

The decree of the court is embodied in the following 
sentence (z) : — 



Sentence. 

In the name of God, amen. We, Joseph Philli- Sentence of 
more. Doctor of Laws, Commissary General of the 
Venerable the Dean and Chapter of the Cathedral 
Church, of Saint Paul, London, in and throughout their 
whole peculiar jurisdiction, lawfully appointed, rightly 
and duly proceeding, having heard, seen, and understood, 
and fully and maturely discussed the merits and circum- 
stances of a certain cause of divorce or separation from 
bed, board, and mutual cohabition, by reason of adul- 
tery, now depending before us in judgment, between 
John Todhunter, of the parish of Saint Pancras, in the 
County of Middlesex, and peculiar jurisdiction afore- 
said, the party agent and complainant of the one part, 
and Rosa Matilda Todhunter, wife of the said John 
Todhunter, of the same parish, the party accused and 
complained of, on the other part, and the parties afore* 
said lawfully appearing before us in judgment, by their 
proctors, and the proctor for the said John Todhunter, 
praying sentence to be given for, and justice to be done 
to his said party, and the proctor for the said Rosa Ma- 
tilda Todhunter, praying justice to be done to his party. 
And we having first carefully and diligently seardied into 

(i) Thu is more usual than an unless an official copy of the 

interlocutory decree. By a proceedings, and of a dejvnithe 

standing order of the House of tenUnce^ a- mensA et ihoro in the 

Lords, relatiye to the bringing in Ecclesiastical Court, at the suit of 

and proceeding on private bills, it the party desirous to nresent such 

is directed, (No. 141,) '* that no petition, shall be delivered upon 

petition for any bill of divorce oath at the bar of the house at 

shfljl be presented to the house, the same time." 



346 MATRIMONIAL CAUSES. 

aiid considered the whole proceedings had and done 
before us in this cause^ and having observed all and 
singular the matters and things that by law ought to be 
observed in this behalf^ have thought fit and do thus 
think fit to proceed to the giving our definitive sentence 
or final decree in this cause^ in manner following, 
to wit: — Forasmuch as we have by the acts enacted, 
deduced, alleged, exhibited, pleaded, propounded, and 
proved in this cause, found out and clearly deduced 
that the proctor of the said John Todhunter hath suffi- 
ciently founded and proved his intention deduced in a 
certain libel, with two exhibits annexed, given in, and 
admitted in this cause on his behalf, and now remain* 
ing in the registry of this court, (which said libel and 
exhibits we take and will have taken as if here read and 
inserted,) for us to pronounce as hereinafl;er is pro- 
nounced, and that nothing at least effectual in law hath, 
on ihe part and behalf of the said Bosa Matilda Tod- 
hunter been excepted, deduced, exhibited, pleaded, pro- 
pounded, or proved to defeat such intention. There- 
jbre, we, Joseph Phillimore, Doctor of Laws, the Com- 
missary-General aforesaid, having heard counsel leanied 
in the law, in this behalf, on the part of the said 
John Todhunter and Rosa Matilda Todhunter respec- 
tively, do pponounoe, decree, and declare that the said 
John Todhunter and Rosa Matilda Todhunter, being 
free firom all matrimonial oontraots or espousals^ (save 
to each other,) did at the time and place libeUate, con- 
tract true, pure, and lawful matrimony, between each 
each other, and did sdenmize the same in the hce of 
the church, and afterwards consununated it by carnal 
copulation, and that the said John Todhunter and Rosa 
Matilda Todhunter were and are lawful husband and wife, 



DIVORCE BY REASON OF ADULTERY. 347 

and for and as such were and<are commonly accounted^ 
reputed, and taken to be, and we do also pronounce, 
decree, and declare (according to the lawful proofs made 
before us in this cause as aforesaid,) that the said 
Rosa Matalda Todhunter, after the solemnization and 
consummation of the said marriage, being altogether 
unmindful of her conjugal vow, and not having the fear 
of God before her eyes^ but being instigated and se- 
duced ly the devil, did, at the times and places pleaded 
in the said libel, or at some of them, commit the crime 
of adultery, and did thereby violate her conjugal vow; 
wherefore, and by reason of the premises, we do pro- 
tiounce, decree, and declare that the sidd John Tod- 
hunter ought by law to be divorced and separated from 
bed, board, and mutual cohabition with her the said 
Rosa Matilda Todhimter his wife, until they shaU be 
reconciled to each other, and we do by these presents di- 
vorce and separate them accordingly^ (bond having been 
^ven by or on the part of the said John Todhunter, 
according to the tenor of the canon in that behalf made 
and provided, that he the said John Todhunter shall not 
contract any other marriage whilst the said Rosa 
Matilda Todhimter shall be living,) intimating neverth^ 
less, and by such intimation expressly inhibiting, accord- 
ing to the ecclesiastical laws and canons made in that 
behalf^ as well the said Rosa Matilda Todhimter as the 
said John Todhunter, that neither of them, in the life- 
time of each other, shall in anywise attempt or presume 
to contract any other marriage by this our definitive 
sentence or final decree, which we give and promulge 
by .these presents. 



348 MATRIMONIAL CAUSES. 



PERMANENT ALIMONY. 

The principles on whicli the allotment of alimonyi 
pendente lite, is made^ have been already explained. 
I will now describe the allotment of permanent ali- 
mony after the termination of the suit, which is m 
some respects materially distinguished from the former, 
though equally discretionary in the court. It is an 
allowance made to the innocent wife, when she has 
proved herself entitled to it, by obtaining a divorce 
from her husband, on the ground of his cruel or adul- 
terous conduct (a). 

A much larger proportion is therefore due firom the 
husband's income or property, for permanent alimony, 
than for alimony pending suit The court has held 
that the wife, being separated from the comfort of ma- 
trimonial society, and the intercourse of her family, 
through the misconduct of her husband, should be 
liberally supported (A). 

The exact proportion of alimony is in the judicial 
discretion of the court (c), a moiety [d), a third (e), and 
even a less proportion has been at times, according to 
the circumstances of the case, awarded to- the wife (/)• 



(a) Cooke v. Cooke, PhiU. R. (e) Kempe v. Kempe, Hagg. 

vol. 2, pp. 41, 42. . R. vol. 1, p. 632. 

(6) Otway v. Otway, Phill. (f) Blaquiere v. Blaqutere, 

vol. 2, p. 109. PmlL R. 3, p. 258. Street v. 

(c) Ibid. Street, Add. k. vol. 2, p. 4. 

(d) Cooke V. Cooke, Phill. R. Durant v. Duranti Hagg. R. vol. 
vol. 2, p. 40. Smith V. Smith, l,p.528. 

ibid, p. 235. 



CRUELTV. 349 



Alimony is allotted from year to year^ and is decreed 
from the date of the sentence (^). A quarterly pay- 
ment is generally assigned. 



CRUELTY. 

Cruelty^ proved on the part of either the husband or 
the wife, entitles the other party to invoke the interference 
of the matrimonial court, in the form of a divorce a 
mensa et thoro (a). In a state of personal danger, no 
duties can be discharged, as the obligation of self pre- 
servation justly takes precedence of them (i). 

Legal cruelty consists either in the danger of life, 
limb, or health, or the reasonable apprehension of 
bodily hurt (c). Nothing short of this can be admitted 
by the court. 

The circumstances to which this test must be ap- 
plied are necessarily so numerous and varied, that an 
attempt at classification would be perfectly absurd and 
at the same time of little use. 

Cruelty is no bar to a charge of adultery (cf). It 
will, however, revive condoned adultery (c), and less is 



(g) Durant v. Durant, ib. 528. (rf) Arkly v. Arkly, Phill. R. 

Blaqniere v. Blaqniere, Hagg. 3, S, p. 500. Harris v. Harris, 

p. 329. Hagg. R. 2, p. 376. 

{a) Evans v. Evans, Hagg. (e) Worsley r. Worsley, Hagg. 

C. R. 1 p. 37. R. 1, p. 734. Durant v. Darant, 

(6) Ibid. ibid. p. 745, 765. 

(c) Ibid. 



350 MATRIMONIAL CAUSES. 

required for that purpose than to found an ongiiial 
sentence. 

Where cruelty and adultery are boih dwrged against 
a party, it is not absolutely necessary to prove the 
former (/). 

It will be unnecessary to give a form of the dtation, as 
it is identical with that used in the preceding suit, with 
the exception of the ground of divorce. 

The following form will illustrate the libel, — 

Libel. 
I against I • 



In the name of God, amen, &c. 
First. That on the 19th day of June, 1834, the said Henry 

Isaac Blackburn I y then a bachelor, of the age of 

twenty-one years and upwards, and the said Sophia 

I y then Sophia C , widow, were lawfully joined 

together in holy matrimony, according to the rights and 
ceremonies of the Church of England, as by law esta- 
blished, in the district church of Saint Mary, in the 
parish of Saint Marylebone, in the county of Middle- 
sex, by the Reverend Thomas L. Ramsden, a Priest or 
Minister in Holy Orders of the Church of £ngland, or 
tlien and there ofEciating as such, and who then and 
there pronounced them lawful husband and wife in the 
presence of divers credible witnesses, and that an entry 
of such marriage was duly made in the register-book of 
marriages, kept in and for the said church or district; 
and this was and is true, and the party proponent 

(/) Smith V. Smith, Phill. R, 2, p. 67. 



CRUELTY. 35 I 

alleges aad propounds every thing in this and the sub- 
sequent articles of this libel contained jointly and 
severally. 

That in part supply and proof of the premises in the Second, 
next preceding article pleaded^ and to all intents and 
purposes in the law whatsoever, the party proponent 
exhibits, hereto annexes, and prays to be here read and 
inserted, and taken as part and parcel hereof, a certain 
paper writing, partly written and partly printed, marked 
A, and alleges and propounds the same to be and con« 
tain a true copy of the original entry of the marriage of 

the said Henry Isaac Blackbume I and Sophia I 

in the preceding article mentioned ; that the same hath 
been &itlifully extracted from the Register Book of 
Marriages kept in and for the said church or district of 
Saint Mary, in the parish of Saint Marylebone, in the 
county of Middlesex, for the year 1834, and carefully, 
collated with the original entry now remaining therein 
and found to agree therewith ; that all and singular the 
contents of the said exhibit were and are true> that all 
things were so had and done as therein contained, and 

that Henry Isaac Blackbume I and Sophia C 

in the said exhibit mentioned, and Henry Isaac Black- 
bume I and Sophia I > formerly Sophia C y 

the parties in this cause, were and are tiie same persons 
and not divers ; and the party proponent doth allege 
and propound as before. 

That from and after the solemnization of the said Third, 
marriage, the said Henry Isaac Blackbume I ■ ■ and 

Sophia I lived and cohabited together at bed and 

board as lawful husband and wife, and consummated 
their marriage by carnal copulation, but without issue ; 
that they lived and cohabited together at Montague 



352 MATRIMONIAL CAUSES. 

Square^ in the said parish of Saint Marylebone, and at 
Croydon, in the county of Surrey, and at Lewisham, in 
the county of Kent, until the 10th day of Septemher, 
1845, when that cohabitation ceased, as hereinafter 
pleaded ; that ever since their said marriage, they, the 
said parties, have owned and acknowledged each other 
for lawful husband and wife, and that for and as such 
they were and are commonly accounted, reputed, and 
taken, by and amongst their relatives, friends, and 
acquaintances ; and this was and is true, &c. 

Fourth. That in or before the month of February, 1844, the 

said Henry Isaac Blackbume I formed a connexion 

with a woman, named or passing by or under the name 
of Barton, who then resided at No/ 2, Blackheath Hill, 
Greenwich ; that he frequently visited her at her said 
residence, and walked out arm-in-arm with her at 
Greenwich and other places in the neighbourhood; 
that he also frequently drove her out in his carriage, 
and in respect of such drives enjoined the strictest 
secresy upon the servant who accompanied him ; that 
he also was in the habit, unknown to his said wife, of 
* writing and sending letters to the said Barton, 

and of supplying her with meat, grocery, and other 
provisions, and that he also frequently sent her vegeta- 
bles from his own garden ; and this was and is, &c. 

Fifih. That shortly after the said Henry Isaac Blackbume 

I had become acquainted with the said Barton, 

as pleaded in the next preceding article of this libel, his 
visits to the said Barton became more frequent ; 

that at length he visited her nearly every day, and often 
at late hours of the night ; that he also passed several 
nights in each week at her house, and was in the morn- 
ing frequently seen standing at her bed-room window 



CRUBLTV. 353 

in his shirt sleeves, and on other occasions was seen 
sitting with her at her parlour window, with his arm 
roond her waist; and the party proponent doth ex- 
pressly allege and propound that on all or most of such 
visits, divers and great fiEuniliarities passed between the 

said Henry Isaac fikckbume I and the said 

Barton, and that they frequently slept, naked and alone, 
in one and the same bed, and had the carnal use and 
knowledge of each others bodies, and committed adul- 
tery tc^ether, and that he still continues so to sleep 
with her^ and to conunit adultery ; and this was and is 
true, &C. 

That on or about the day of , Sixth. 

1844, the said Heniry Isaac Blackbume I took the 

said Barton to a fair held at Croydon, in the 

county of Surrey, and on his return therefirom stopped 
at his house at Lewisham, and where his said wife then 
was, and having taken the said Barton into the 

stable, in order to avoid the observation of his said 
wife, went into his said house and fetched her out a 
glass of wine and water, and, after she had drunk it, 
proceeded with the said Barton to her house 

aforesaid^ where he remained with her the whole of that 
night, and on such occasion the said Henry Isaac 

Blackbume I and the said Barton slept 

together, naked and alone, in one and the same bed, 
and committed adultery together; and this was and is 
true, &c. 

That on or about the day of , seventh. 

in the said year 1844, the said Henry Isaac Blackbume 

I went to a fair held at Charlton, in the county of 

Kent, accompanied by the said Barton, who 

was then dressed as a German broom girl; that the. 

A A 



354 MATRIMONIAL CAUSES. 

said Henry Isaac Blackbume Ivey and Barton 

spent the evening together at the said fair, and at a 
late honr returned together to the house of the s^d 
Barton^ where they again slept in one and the 
same bed, naked and alone, and committed adultery 
together; and this was and is true, &c. 

Eighth. Thst on or about the eighteenth day of January, 

1845, the said Barton removed firom Black- 

heath to a house situate at Dacres Street, in Lee, in 
the said county of Kent, and where, upon her so doing, 

the said Henry Isaac Blackbume I still kept up 

his aforesaid adulterous intercourse with her ; that he 
visited her usually many times in the week, and often 
remained all night at her house, and sometimes for 
several nights together, and that now, to wit, in the 
month of January, 1846^ he almost entirely lives with 
the said Barton, at Lee aforesaid ; and the 

party proponent alleges and propounds that during the 
said Bartends said residence at Lee they, 

the said Henry Isaac Blackbume I and the said 

Barton, have very frequently had the camal 
use and knowledge of each others bodies, and com- 
mitted adultery together ; and this was and is^ &c 

Ninth. That from the time the said Henry Isaac Blackbume 

I formed the guilty connexion before pleaded, to 

wit, the month of February, 1844^ and until Ids said 
wife separated herself from him as hereinafUr pleaded, 
he constantly treated her with the greatest violence and 
contumely; that he habitually called her an old bitch, 
a bloody or blasted old bitch, an old bawd, and the like 
opprobrious names, without the slightest provocation 
on her part ; that he used to destroy the furniture of 
the house, break the windows, and do other acts of a 



CRUELTY. 355 

nature to alarm or terrify his said wife ; and the party 
proponent doth expressly allege and propound that in 
consequence of such the ill-treatment of the said Henry 

Isaac Blackbume I , the health of the said Sophia 

I became and still continues to be greatly impaired ; 

and this was and is true^ &c. 

That on the evening of the 21st day of December^ Tenth. 

1844^ the said Henry Isaac Blackbume I > without 

any provocation on the part of his said wife, struck her 
as she was sitting on a couch in the drawing-room of 
their said house at Lewisham^ so violent a blow on the 
eye with the back of his hand, upon which he wore a 
ring, that her eye was nearly closed, and became and 
remained black for many days afterwards, and was seen 
in that state by different persons ; that the said Henry 

Isaac Blackbume I then spat in the face of his said 

wife, and also threw a tumbler full of hot elder wine 
over her, and told her that thenceforward he should 
take his meals in a separate room, which he accord- 
ingly did for a long time after; and this was and is 
true, &c« 

That on the evening of the tenth day of September Eleventh. 
last, the said Henry Isaac Blackbume I , after apply- 
ing many abusive epithets to his said wife, urged her to 
allow him a further sum of £200 per annum (she 
having, at the time and in contemplation of the said 
marriage, as the party proponent expressly alleges and 
propounds, settled upon him the yearly sum of £100,) 
and upon her refusing so to do, rushed towards her in 
an infuriated state, and pressing one of his clenched 
fists hard upon her forehead, and shaking the other 
close to her facg, roared out, " Damn you, you bloody 

AA 2 



356 MATRIMONIAL CAUSES. 

old bitchy it is fortunate for you that I am not drunk 
to-day/' or to that effect ; and then said^ seizing her by 
the arm and thigh^ '' Shall I throw you out of the 
window, you bitch ? '* — adding, ** No, I will not to-day; 
but the next time I come home in such a temper, espe- 
cially if I have had any gin, I will not answer for the 
consequence/' that the said Henry Isaac Blackbume 

I then left the house, and did not return that night; 

that the said Sophia I also the next morning left 

the said house, and has ever since lived separate and 
apart from her said husband, but that previous to her 
so leaving the said house she shewed to > 

her servant, the marks on her arm produced and left 
by the violence of the said Henry Isaac Blackbume 
I ; and this was and is true, &c. 

Twelfth. That the man who formed an adulterous connexion 

with a woman passing imder the name of 
Barton, in or before the month of February, 1844, at 
No. 2, Blackheath Hill, and who continued and still 
continues the same adulterous connection with her at 
Lee, and who frequently passed the night and slept 
with her in one and the same bed, naked and alone, and 
had the carnal use and knowledge of her body, as 
pleaded in the former articles of this libel, and Henry 

Isaac Blackbume I , party in this cause, was and is 

the same person, and not divers, and the woman whom 
he so visited and slept with, and of whose body he had 
the carnal use and knowledge, was not and is not the 

. said Sophia I , party in this cause, but a different 

person ; and this was and is true, &c. 

Thirtaentb. That, &c. &c. 



JACTITATION OF MARRIAGE. 



357 



This suit does not in any respect differ from the 
proceedings for a divorce on the ground of adultery, 
except that in the former the answers of the defendant 
are allowed to be taken to the libeL 



JACTITATION OF MARRIAGE. 

This is a suit of very unfirequent occurrence^ but as it 
may at times become a proceeding of great practical 
utility, it should not be omitted here. 

Jactitation may be defined to be a malicious boast or 
report of marriage, set up or propagated by one indivi- 
doal against another, without truth or justification for 
it In such a case, the inconvenience and annoyance 
to which the injured party is subjected entitle him or 
her to a remedy in the Ecclesiastical Court ; and this 
remedy consists in a judicial imposition of silence upon 
the offender, who, in the event of a contumacious in- 
fiaction of the decree of the court, will be attached for 
disobedience. 

This suit, in some respects, partakes of the nature 
of a cause of defamation, for in each the party seeks 
relief against an injurious expression, or series of ex- 
pressions, impugning his character or status in society. 
The proceeding commences by a citation in the same 
form as each of the preceding ones, the description of 
the suit only varying, viz., A. B. is cited ^^ to answer 
to C. D. in a cause of jactitation of marriage.'^ 



358 



MATRIMONIAL CAUSES. 



A libel is exhibited by the promoter^ of the following 
tenor, viz.— 



Libel of 
jactitation. 

First 



Second. 



Third. 



Lihel. 

In the name of God, amen, &c« 

That the aforesaid Bight Honourable Edward Harvey, 
Lord Hawke, was and is a widower and free, and in no 
way married to, or imited in marriage with> the said 
Augusta Elizabeth Corri, (falsely calling herself Lady 
Hawke,) party in this cause, and for and as a person so 
free and unmarried was and is commonly accounted, re- 
puted, and taken to be, by and amongst his neighbours, 
friends^ and familiar acquaintances ; and this, &c. 

That the said Augusta Elizabeth Corri, (fidsely calling 
herself Lady Hawke,) sufficiently knowing the pre- 
mises, and notwithstanding the same, did, in the several 
months of October, November, and December, in the 
year 1818, and in the month of January, and this instant 
month of February, of the present year 1819, at Wel- 
beck Street, in the county of Middlesex, and in divers 
other parishes and places in the neighbourhood thereof, 
or thereto adjoining, and in all, some, or one of the 
abovementioned times and places^ in the presence of 
several credible witnesses, falsely and maliciously 
boast, assert, and report, that she was married to, or 
united in marriage with, the said Right Honourable 
Edward Harvey, Lord Hawke, whereas in fact no mar- 
riage was ever had or solemnized between them; and 
this, &c. 

That the said Augusta Elizabeth Corri, (falsely caUbg 
herself Lady Hawke,) hath been asked and requested 
to cease, desist, and abstain from her false and mail- 



JACTITATION OF MARRIAGE. 359 

dons boasting, asserting, and reporting, as mentioned 
in tiie next preceding article ; and tiiis, &c« 

That the said Augusta Elizabeth Corri, (frlsely call* IPounh. 
ing herself Lady Hawke,) being as aforesaid asked and 
requested to cease, desist, and abstain from her false 
and malicious boasting, asserting, and reporting, hath 
not in the least, or doth not in the least, at present 
cease, desist, and abstain therefrom, but with like 
malice and rashness doth continually^ fidsdy, and mali- 
dously boast, assert, affirm^ and report the same, to 
the no small prejudice of the said Right Honourable 
Edward Harvey, Lord Hawke, and the pernicious 
example of others ; and this, &c« 

That of all and singular the premises it was and is^ Fifth. 
by and on the part and behalf of the said Right 
Honourable Edward Hanrey, Lord Hawke^ as being 
aggrieved and injured by reason of the said pretended 
boasting, asserting, and reporting of the said Augusta 
Elizabeth Conri, (fidsely calling herself Lady Hawke,) 
rightly and duly complained to you the judge aforesaid, 
for a fit remedy to be had and provided in this behalf 
and to this court; and this, &c. 

Residence, &c. Sixth. 

That all and singular the premises, &c., and also that Seventh. 
by this court it may be pronounced and decreed that 
the said Itight Honourable Edward Harvey, Lord 
Hawke, at and during all the times mentioned in this 
libel^ was and is free, and in no way married to or 
united in marriage with the said Augusta Elizabeth 
Ck>rri^ (fidsely calling herself Lady Hawke,) and that 
notwithstanding the premises, she^ the said Augusta 
Elizabeth Corri, did, in the years, months^ and places 



3G0 MATRIMONIAL CAUSES. 

libellate^ or in some or one of them^ falsely and mali- 
ciously boast, assert, and report that she was married 
to, or contracted in marriage with, the said Right Ho- 
nourable Edward Harvey, Lord Hawke^ and that she 
may be enjoined perpetual silence in the premises^ and 
obliged and compelled to cease, desist, and abstain 
from such her false and malicious boastings, assertions, 
and reports, for the future, and that she be condemned 
in the costs made and to be made in this cause on the 
. part and behalf of the said Right Honoiirable Edward 
Harvey Lord Hawke, &c. 

The libel having been admitted to proof, the issue is 
next required of the defendant. If given in the n^a- 
tive, the sworn answers are decreed ; and if in these all 
the positions of the libel are denied, evidence of the 
jactitation is taken. Publication having been prayed 
on the part of the promoter, it then becomes necessary 
for the defendant to counterplead, if he or she has any 
case to set up in defence ; and there are three modes of 
defence to a suit of this kind, viz. : — ^First, by denying 
the fact of jactitation ; — ^second, by affirming the repre- 
sentation in question to be true, and that a marriage 
has actually taken place between the parties : (in which 
case the proceedings will assume the shape of a cause 
of nullity of marriage, or of restitution $ — ) third, by 
admitting that, though no marriage has passed, yet that 
the pretension on the part of the jactitant was fully 
authorized by the complainant, and consequently that 
the representation or boasting, though fidse, was not 
malicious (a). 

(a) Hawke v. Corn, Hagg. Ck>n8. Rep. vol. 2, p. 280. 



RESTITUTION OF CONGUOAL RIGHTS. 361 

The first case I have mentioned depends mainly 
on the sort of the evidence put forward by the pro- 
moter. If that fails^ or scarcely arrives at the proper 
extent, the dismissal of the defendant follows as a 
matter of oonrse. In the second case^ either a sentence 
of nullity^ or a decree of restitation of conjugal rights^ 
is given^ according to the stringency of the proofs in 
the suit. And in the third case, if the jactitation is 
clearly shown by the defendant to have been permis- 
sive, t. e. connived at by the adverse party, the latter is 
barred of his remedy, and is left to the consequences of 
his own indiscretion or vice. 

If the jactitation can be shewn by the evidence on 
the libel to have been as malicious and unauthorized as 
it was false and unjust, and there is no proof on the 
other side to rebut or weaken this conclusion, the court, 
in its final decree^ enjoins a perpetual silence on the 
jactitant^ and also imposes upon him or her the whole 
costs of the suit. 



RESTITUTION OF CONJUGAL RIGHTS. 

When cohabitation is suspended on^the part of a hus- 
band or wife, by his or her own authority merely^ 
without a sufficient reason for the act, the aggrieved 
consort is entitled to the aid of the ecclesiastical 
court in enfordng a restoration of the duties of mutual 
intercourse. This is technically called a restitution of 
conjugal rights. And to a suit instituted for such a 



362 MATRIMONIAL CAUSES. 

purpose there is no bar or legal opposition except cru- 
elty or adultery on the part of the promoter. For a 
deed of separation upon mutual agreement, on account 
of domestic difierences, though containing a covenant 
not to bring a suit for restitution of conjugal rights, is 
not regarded by the Court Christian as in any way re- 
straining the exerdse of its jurisdiction under these 
circumstances. The course of proceeding is as fol* 
lows : — ^The plaintiff or promoter extracts a citation 
against the offender. This process is in the same 
general form as that used in the other matrimonial 
causes^ and enjoins tiie defendant to appear on a day 
therein named^ and answer to the other ^^ in a cause 
of restitution of conjugal rights^ and further to do, 
&c.^' (a). 
The libel is as follows :-^ 

LibeL 

Libel for res- In the name of God, amen, &c. 

conju«fcl° That in the months of October, November, and De- 

Tnghta. cember, in the year 1829, and in the month of January, 

^^^ 1830, the said John Donnithome Taylor, being then a 

bachelor, of the age of twenty-one years and upwards, 

and free from all matrimonial contracts and engagements, 

paid his courtship and addresses in the way of marriage 

to the said Elizabeth Henrietta Taylor, then Elizabeth 

Henrietta Thompson, of the age of eighteen years and 

upwards, and also firee from all matrimonial contracts 

and engagements, who received such the courtship and 

addresses of the said John Donnithome Taylor and 

(a) Westmeath v. Westmeath, Hagg, R.2, p. 115, Supplcmcnti 



RESTITUTION OF CONJUGAL RIGHTS. ^^^ 

agreed to be married to him ; and that in pursuance of 
such agreement, on or about the 13th day of the said 
month of January^ 1830^ they^ the said John Donni- 
thome Taylor and Elizabeth Henrietta Taylor, then 
Elizabeth Henrietta Thompson, spinster^ were lawfully 
jomed togedier in holy matrimony, according to the 
rites and ceremonies of the Church of England, as by 
law established, in the parish church of Edmonton, by 
the Beyerend Thomas Hutton Vyvyan^ a priest or 
mioister in holy orders of the Church of England, 
who then and there pronounced them to be lawful 
husband and wife, and that an entry of such marriage 
was duly made in the Register Book of Marriages kept 
in and for the said parish of Edmonton ; that the names 
*' J. D. Taylor,*^ and *^ E. H. Thompson/^ respectively 
subscribed to the said entry of marriage in the Register 
Book of Marriages as aforesaid^ are of the proper hand- 
writing and subscription of them the said John Donni- 
thome Taylor and Elizabeth Henrietta Taylor^ then 
Eliaabeth Henrietta Thompson, and are so known to 
be by div€rs credible persons^ who had often seen them 
write and subscribe their names, and are thereby become 
well acquainted with their manner and character of hand- 
writing and subscription ; and this was and is true, 
public and notorious, and the party proponent doth 
all^ and propound every thing in this and the sub- 
sequent articles of this libel contained jointly and 
aevenlly. 

That in supply of proof of the premises in the next Second. 
preceding article, and to all intents and purposes in 
the law wbatsoevrar^ the party proponent doth exhibit 
and hereto annex, and pray to be here read and in- 
serted, and taken as part and parcel hereof, a paper 



364 



Tbiid. 



MATRIMONIAL CAUSES. 

writing marked No. 1^ and doth all^e and propound 
the same to be and contain a true copy of the entry 
of the marriage of the said John Donnithome Taylor 
and Elizabeth Henrietta Taylor^ dien Elizabeth Hen- 
rietta Thompson, mentioned in the preceding article; 
that the same hath been faithfully extracted from the 
Register Book of Marriages kept in and for the sud 
parish of Edmonton, and carefully collated widi the 
original now remaining therein, and agrees therewith 
in all respects; that all and singular the contents of 
the said exhibit were and are true, that all things were 
so had and done as therein mentioned, and that John 
Donnithome Taylor and Elizabeth Henrietta Thomp- 
son therein mentioned, and John Donnithome Taylor 
and Elizabeth Henrietta Taylor, formerly Elisabeth 
Henrietta Thompson, the parties in this cause, were 
and are the same persons and not divers; and 
this was and is true, public, and notorious, and so 
forth. 

That the said John Donnithome Taylor and his wife, 
the said Elizabeth Henrietta Taylor, duly consununated 
their said marriage, and, from and after the same, lived 
and cohabited together as lawful husband and wife, 
among other places at Gouldlands, and afterwards at 
Woodlands, both in the parish of Edmonton aforesaid, 
and that from and after their said marriage, they, the 
said John Donnithome Taylor and the said Elizabeth 
Henrietta Taylor, have constantly owned and acknow-* 
ledged each other as husband and wife^ and as and for 
such respectively were and are commonly reputed and 
taken by and amongst their relations, friends and ac* 
quaintance, and others ; and this was and is true, public, 
and notorious, and so forth. 



RESTITUTION OF CONJUGAL RIGHTS. 365 

That notwithstanding the premises herein before Fourth. 
pleaded and set forth^ the said John Donnithome 
Taylor hath ever since the 22d day of June last, to wit, 
of June^ 1858^ without any just cause refused, and still 
refuses, to permit the said Elizabeth Henrietta Taylor 
to live and cohabit with him the said John Donnithome 
Taylor, and to render to her conjugal rights, although 
he hath been repeatedly and earnestly entreated so to 
do by her, or on her' behalf; and this was and is 
true, public, and notorious, and so forth. 

That the said John Donnithome Taylor was and is Fifth, 
of the parish of Edmonton, in the county of Middlesex, 
and therefore, and by reason of the premises, was and 
is subject to the jurisdiction of this court ; and this, &c. 

That of and concerning all and singular the pre- sixth, 
mises, it hath been and is rightly and duly complained 
to you, the vicar-general aforesaid, and to this court; 
and this was and is trae, and so forth. 

That all and singular the premises were and are tme. Seventh. 
pubU(^ and notorious, and thereof there was and is a 
public voice, fame, and report, of which legal proof 
being made, the party proponent prays that the marriage 
hereinbefore pleaded and set forth may be pronounced 
for, and that the said John Donnithome Taylor may be 
compelled by law to take home and receive his wife, the 
said fUizabeth Henrietta Taylor, and render to her con- 
jugal rights, by you and your definitive sentence, or 
final decree, to be made and ^ven in this cause, and 
further, that right and justice may be done to him and 
his party in the premises. 

If the party cited has no pretext or desire to prolong 
an useless defence, he may, on appearing to the cita- 



366 



MATRIMONIAL CAUSES. 

tion^ declare his readiness to take his wife home^ and 
treat her with conjugal affection, and the court will then 
make an order accordingly, and assign him to certify 
bis haying so done by a certain day. If the other party, 
on such day, acquiesces in an assertion or certificate to 
that effect, the suit determines and the defendant is 
dismissed. 



NULLITY OF MARRIAGE. 

In these suits, the sentence of the Ecclesiastical Court 
is merely declaratory, the pretended marriage in ques- 
tion having been, ipso facto, null and void from the 
beginning, in consequence of the legal or canonical de- 
fect in or connected with its celebration (a). 



IMPOTENCE. 

Suits of this kind are divided into questions of fri- 
gidity on the man's part, and absolute incapacity from 
natural or accidental malformation on the part of either 
the man or woman. 

It is almost unnecessary to state that the same 
action appertains to both parties, their rights and duties 

(a) Bowzer v. Ricketts, Hagg. C. R. vol. 1, p. 214. 



IMPOTENCE. 367 

being co-equal^ whether the fiiilaie is on one side or the 
other (a). 

The existence of incurable impotence^ must clearly 
appear^ for where there is a probability of capacity^ 
however slight, the court cannot separate the parties {b). 
And the impediment must also be shewn to hare 
existed at the time of the marriage^ for if it has super- 
vened only it is no ground for nullity (e). 

Each of the two divisions of this species of suit has 
its own peculiarities, arising from the nature of the 
defect sought to be proved and remedied. To found a 
suit for nullity of a marriage on the ground of frigidity 
there must be a triennial cohabitation of theparties before 
its institution. And this is so imperatively required 
by the canon law, that if such persons have been a 
great part of that time absent from each other, the 
man shall be restored as to that time during which he 
has been absent {d). 

This iriennaUa cohabiiatio is not, however, rigidly 
construed into a living together de diein diem, but is 
understood to mean a general cohabitation only, such 
as is usual between married persons (e). A suit com- 
menced before the expiration of this period is prema- 
ture, and will be dismissed by the court on that 
ground. 

The proofs in this suit, are the sworn answers of the 
husband, his corporal inspection under the directions of 
the court, by competent medical men, elected and 
sworn for that purpose, and as a collateral proof, a 

(a) Briggs ▼. Morgan, Fhill. (c) Brown v. Browni Hagg. 
R. vol. 3, p. 327. R. vol. 1, p. 523. 

(6) Welde v. Welde, Lee. R. (cQ Welde v. Welde, Lee's R. 
VOL 2, p. 586. vol. 2, pp. 585-6. 

(e) Ibid. pp. 579-582. 



368 MATRIMONIAL CAUSES. 

similar inspection of the promoter^ when she is pleaded 
to have been a spinster at die time of the asserted 
marriage, evidence of her vu^nity presumptively 
involving the fact of his incapadty for the proper per- 
formance of the matrimonial duties (/)• 

This inspection is also submitted to^ for tlie further 
purpose of shewing that there exists^ on thepart of the 
lady^ no physical impediment to consummation. 

But the court is not bound, under the circumstances 
of every case^ to require the sworn answers of the party 
and his surreal examination, and to refuse to proceed 
where they cannot be obtained^ as otherwise the man 
would have only to withdraw out of the reach of its 
process, and thus defeat the ends of justice by defraud- 
ing the woman of her remedy. Accordingly the court, 
in Pollard v. Wyboum {g), held that a certificate (twelve 
years after marriage,) that the woman was virgo intacia 
and apta viro, coupled with two several confessions 
by the man of his incapacity to two medical witnesses, 
with proof that the woman's health had suffered, 
was sufficient, though the man, who had removed 
abroad, had not given in his answers, and had refused 
to undergo surgical examination. 

The aforegoing remarks apply to cases of frigidity; 
but where, from actual malconformation^ the infirmity 
can be ascertained at once, the triennal cohabitation is 
not required. (A) These latter suits are common to the 
man and the woman, but in the case of the former are 
designated by the same general appellation of 
impotencyt 

(./•) Pollard V. Wyboum, (A) Briggs v. Morgan, Phill. 
Hagg. vol. 1, p. 738. R. 3, p. 329. 

(£) Ibid. p. 725. 



IMPOTBNCB. 369 

This suit commences with the following dtation : — 

Citation. 

Charles James by Divine permission. Bishop of Lon- citation for 
don^ to all and singular clerks and literate persons impotence, 
whomsoever and wheresoever in and throughout 
our whole diocese of London^ greeting : — 
We do hereby authorize, empower, and strictly en- 
join and command you, jointly and severally, perempto- 
rily to cite or cause to be cited A B , 

of the parish of in the county of , 

Esquire, and our diocese of London, by shewing 
him this original citation under seal, and by leaving 
with him a true copy thereof, to appear personally, or 
by his proctor duly constituted, before the Right 
Honourable Stephen Lushington, Doctor of Laws, our 
Yicar-General and Official Principal of our Consisto- 
rial and Episcopal Court of London, lawfully consti- 
tuted, his surrogate, or some other competent judge in 
this behalf, in the Common Hall of Doctors' Com- 
mons, situate in the parish of Saint Benedict, near 
PtoFs Wharf, London, and place of judicature there, 
on the third day after he shall have been served here- 
with, if it be a general session, bye-day, extra or addi- 
tional court-day of our said court, otherwise on the 
general session, bye-day, extra or additional court-day 
of our said court then next ensuing, at the hour of the 
atting of the court, and there to abide, if occasion re- 
quire, during its continuance, then and there to answer 

to C D f spinster, falsely called , 

and pretended to be the wife of the said A 

B- , in a certain cause of nullity of mar- 

B B 



370 MATRIMONIAL CAUSES. 

riage, by reason of impotency of him the said A- 



B , and further to do and reoeive as unto 

kw and justice shall appertain^ under pain of the law 
and contempt thereof^ at the promotion of the said 
C D ■ ■ , spinster, ftlsely called ; and 

what you shall do or cause to be done in tiie premisesy 
you shall duly certify our vicar-general and o£B<naI 
principal aforesaid, his surrogate, or other competent 
judge in this behalf, together with these presents* 

Givenat London, this day of > ia 

the year of our Lord one thousand eight hundred and 
, and in the year of our translation.^ 

The Ubel is as follows :— 

Libel. 

. In the name of Ood, amen, &c. 

potence. That in the months of March^ Aprils and May, 

First. 18 9 the said A^~ B ^ being a bachelor of the 

age of twenty but under the age of twenty-one years, 
and free from aU matrimonial contracts and engage- 
ments, did make his oourtship and addresses in the way 

of marriage, to the said C D , who being a 

spinster of the age of twenty-one years and upwards 
and free from all matrimonial contracts and engage- 
ments^ received such his courtship and addresses, and 
consented to be married to him, and accordinglyi on or 
about the first day of , in the said year 18 , a 

marriage in fact was had and solemnized in the pie^ 
sence of divers credible witnesses, between them the 

said A B— — and C D ^ in the chapel 

of the precinct of in the city of (the 

said chapel being a public chapel wherein banns of 



IttPOTBNCB. 371 

marriai^ were usually pablinhed^ prior to and since the 
7eai 1754^) by the Reyerend 9 Clerk, a 

Priest or Minister in Holy- Orders of the United 
Chuch of England and Ireland, and the minister or 
diaplain of the said chapel, or then chelating as sudi, 
and according to the rites or ceremonies of the said 
United Church, in pursuance of a license granted for 
the purpose und^ the seal of the office of Acuities of 
his Grace the Lord Archbishop of Canterbury, on the 
day of preceding, reciting as the fact was^ 

that the consult of , tibe natural and lawful 

father /of the said minor, had been obtained to the 
maniage, and an entrj^ of sudi feet of marriage was 
dnly xDade in the r^ister^book of marriages kept in 
and for the said chapel ; and this was and is true, ' 
public, and notorious. 

That in part supply, &c. Second. 

That on the said first day of 18 , the said Third. 

A B attained Usage of twenty-one years^ 

and the said C D was at such >thne of the 

age of and under the age of twenty-four 

years, and on the ' said day, and almost immediately 
after the solemnization of the said marriage^ they, the 

said A B and C D went together 

to in the cbimty of , and Iremnined at 

the Inn there, until the following morning, and 

passed together the whole of the night of tfie> said 
day of , naked and alon^ in Ond and the same 

bed, at the said inn ; and this was, &o» 

That on iiit morning of the second day of the said Fourth. 

month of 18 , the said A B and 

C D '^' 1^ the smd Inn, at 

and proceeded together to in the county of 

B B 2 



372 



MATRIMONIAL CAUSES. 



, where at the house of » situate 

on the , they in the latter part of the said day 

took up their residence and continued the same for a 
period of fourteen days, or thereabouts, and throughout 
each of the nights dming the said period they lay naked 
and alone together in one and the same bed, in the 
said house ; and this, &c. 

f iftb. That, at the expiration of the said period of fourteen 

days, and about the middle of the said month of 

18 , the said A B and C D 

took up their residence at , in the 

county of , in a house caUed Cottage, 

and there lived and cohabited together from that time 
namely, the middle of the month of > 18 , until 

the day of ? 18 , (save at the short intervals 

hereinafter pleaded,) and on each night of their said re- 
sidence at aforesaid, from the middle of 
the month of y 18 , until the said day of 

18 they, the said A B and C— — 

D lay naked and alone together, in one and the 

same bed, in the said house ; and this, &c. 

Sixth. That on or about the said day of ,189 

the said A-—- B and C— — D went to 

reside at a house in j 

in the county of , and lived and cohabited 

together at the said house, from the said day of 

until the day of following, (save 

at the intervals hereinaftor pleaded,) and on each night 
of their said residence in aforesaid, (save 

those in the intervals, aforesaid,) from the said day 
of 3 18 , to the said day of following, 

they, the said A B and C D 

lay naked and alone together, in one and the same bed, 
in the same house ; and this, &c. 



IMPOTENCE. 



S7S 



That the intervals excepted in the fifth and sixth Seventh. 

articles of this libel, when the said A B and 

C D were away from the said houses respeo- 

txrely in and y 

in the county of , were at the times following, 

that is to say, in the month of , 18 — ; in , 

18 — ; in , 18 — ; in , 18 — ; in and 

, 18—; and in 18 — ; and such inter* 

Tals in the month of , 18 — , and in 18 — , 

consisted of a period of fourteen days each, and were 

passed by the said A B and C D at 

the house of , at , in the said 

county of ; the interval in the month of ' 

18—^ consisted of twenty days and was passed by the 

said A B and C ■ D at the house of 

, at in the county of ; 

the interval in the month of , 18 — , consisted 

of ten days, or thereabouts, and was passed by the 

said A B and C D at the house of 

, at , in the county of 

; the interval in the month of and 

J 18 — , consisted of a month, or thereabouts, 

and was passed by the said A B and C 

D at the house of , at , in the 

the said county of , and , in the 

ctty of , and of , at , 

in the said county of ; the intervals in the 

months of and , 18 — , consisted of thirty-six 

days, or thereabouts, and fourteen days of the same 
m tlie said month of , 1 8 — ^ were passed by 

the said A B and C D , at the house 

of the said , at ^ aforesaid, 

and ten days of the same at the house of , 



374 MATRmOMIAL CAUSES. 

at 9 in the oonnty of ; and dnringthe 
whole of the said several intennds, they, the said A 



B and C IX— lived and cohabited together as 

husband and wife, and on each of the nights of the said 
days, so passed at the said houses respectively, they 
the said A ■ B and CJ— — D — lay naked and 

alone together in one and the same bed; and this 
was, &c 
Eighth. That during the whole of the aforesaid period that 

the said A B and C D— so cohabited 

together, namely, firom the time of the said marriage on 
the said first day of , 18 , to the month of 
,18 , inclusive, they, the said A- 



and C '" ■ D-— were respectively in good health, and 
she the said C D— was also apt and fit for 

coition and the procreation of children, and was willing 
to receive and shewed herself desirous of receiving the 

conjugal embraces of the said A—- — B , and on all 

occanons gave hersdf up to him for the purpose; and 
this, &c 
Ninth. That notwithstanding the premises pleaded in the 

next preceding articles, the said A B has not at 

any time been able to consummate the sdd marriage, 
and she the said C I>— never hath been carnally 

known by him, nor is he the said A B , able 

carnally to know her the said C D — ; and the 

party proponent doth expressly allege and propound 
that the inability of the said A B to consum- 

mate the said marriage and carnally know the the sidd 

C D'-*^ arises from the defective state of the 

parts of generation of him the said A B , and 

his natural impotency, imbecility, and impediment, 
which renders him incapable of oonsmnmating mar- 



IMPOTBNOS. 87S 

riage, or of carnally knowing or having sexual intercourse 
with any woman whomsoever; and this was^ &a 

That prior to^ and at the time of the said marriage Tenth, 
on the day of > 18 ^ and at all times subse- 
quent thereto^ the said A—— B— was, as he now is, 
impotent and wholly incapable of performing the act of 
generation or of carnally knowing any woman, and such 
his constant impotency or imbecility and incapacity will 
dearly appear on an inspection of his person by physi- 
cians and suigeons or other competent persons suffid- 
ently skilled to form an opinion respecting the same; 
and it will also appear by such inspection, that such the 
constant impotency, imbedlity, and incapadty, on the 

part of the said A B > cannot be removed (Mr 

relieved; and this was, &c. 

That the said C D hath not been carnally Qeventh. 

known by man, and now is a virgin, and such her vir- 
ginity will appear on an inspection of her person by 
physicians and suigeons or other competent persons; 
and this, &c« 

That until the month of or , 18 , the Twelfth, 

said C - D — did not divulge or disdose the fact of 
the non-consummation of the said marriage, and the 
same was unknown to her relations until that time. 
That^ subsequently to such disdosure, the said A — — 
B hath admitted and confessed to divers credible 
persons, and more particidarly, in the said month of 
,18 , to ,and 

to and others, that he had not consum- 

mated the said marriage and carnally known the said 
C D — ^ and that he was at the time of his said 

marriage, and ever since has been, unable to effect such 
consummation, or to that effect; and this was, &c. 



S76 



MATRIHOMIAL CAV8I8. 



ThatA- 



and 



I> 



iD6ntioned, as 



ForaieentfL 



Fifteenth. 



Sixteenth. 



well in the first and second^ aa in the diird^ fourth, 
fifths sixths seventh, dghth^ ninth, tenth, and twelfth 

articles of this libel, and A ■ B and C — 

D , the parties in this cause, were and are the same 

persons, and not diyers, and this, &c. 

That the said A B— — was, longprior to and at 

the time of the commencement of thia suit, and now is 
of the parish of , in the oonnty 

of , diocese of , and province of 

and the said parish was and is within the juris- 
diction of the commissary for the parts of , in 
the said diocese, and by reason of the letters of request 
firom the said commissary, and die acceptance of the 
execution of the same, and other the premises, was and 
is subject to the jurisdiction of this court; and this 
was, &c« 

That of and concerning the premises it hath been 
and is, on the part and behalf of the said C — D , 



ri^tly and duly complained unto you, the official prin*- 
dpal aforesaid, and to this court; and this, &c. 

That all and singular the premises were and are true, 
public, and notorious, and thereof there was and is a 
public voice, fiune, and report, of which legal proof 
being made, the party proponent prays that the mar- 
riage had, as before pleaded, between the said A 

B and C— D , may, by reason of the premises, 

be declared null and void to all intents and piirposes in 
the law whatsoever, and he the said A 



condemned in costs, and that otherwise right and jus- 
tice may be effectually administered in the premises, 
the party proponent not oblij^g himself to prove all 
and singular the premises, or to the burthen of a super- 



TMPOTRNCB. 377 

ftaova proof, against which he protests, but prays that 
so fiur as he shall prove, he may receive on his petition, 
humbly imploring the aid of your office in this behalf. 



LibeL 



In the name of God, amen, &c» Libel for Im- 

That on or about the of , 18 , I^to°c«- 

Pint 

a ceremony of marriage was performed (or rather pro-* 

faned) between the said A B , then a 

bachelor, and the said C D , otherwise (to 

wity ainoe fidsely called) , then (and still) a 

sfrinster, and who were second cousins, in the house 
and chapel of the British ambassador, in the dty of 
and kingdom of ; that the said marriage 

ceremony was so performed by the Reverend 

, Clerk, a Priest or Minister in Holy Orders of 
the Church of England, (Chaplain to the then British 
Embassy in ,) and according to the rites and 

ceremonies of the Churdi of England as by law estab- 
lished ; that an entry of such, as of a marriage between 
the said parties, was made in the Register Book of 
Marriages had and solemnized in the said British Am- 
bassador's Chapel^ in the terms following, to wit: — 

** A B , bachelor of the parish of 

, in the county of , and C D , 

spinster, of the parish of , in the same county, 

were married in this house by licence, with consent of 

, her father, this 
day of 9 in the year one thousand eight himdred 
and J by me, /' ^^ This mar« 
nagQ was solemnized between us,- A B 



878 MATRIMONIAL CAUSES. 

C D in the presence of j 

/' And that a transcript of the said 
entry was afterwards made and transmitted to the 
reg^try of this court, where the same now remains, 
and to which the party proponent craves leave to refer; 
and the party proponent further allc^ges and propounds, 

that A B and C D , who 

were so in fact married as herein pleaded^ and whose 
names respectively are mentioned in the said entry 

and transcript, and A ■ B and C3 • 

D 1 otherwise 9 the parties in this cause 

respectively^ were and are one and the same persons 
respectively, and not divers ; and this, &c. 

Second. That the names^ A B— — — , appearing 

subscribed to the said entry of marriage pleaded in the 
said preceding article, are of the proper handwriting 
and subscription of A B j one of 

the parties in this cause, and are so well known and 
believed to be by divers persons of gpod fiedth and 
credit, who are well acquainted with the said A 
B ■ , and with his manner and character 

of handwriting and subscription^ from, having firequently 
seen him write and subscribed his name to writings^ and 
by odier means ; and this, &c. 

ThW. Thatthe names^ C D , appearing subscribed 

to the said entry of marriage pleaded in tibe said pre- 
ceding article, are of the proper handwriting and sub- 
scription of C D ■ > spinster, falsely called 

, the other party in this cause^ and are so well 
known and believed to be by divers persons of good 
faith and credit, who are well acquainted with the said 
D ■ , and with her manner and character of 



IMPOTENCE. 379 

handwriting and subscription^ from having frequently 
seen her write and subscribe her name to writings^ and 
by other means ; and this, &c. 

That at the time aforesaid of the celebration, or rather Fourth. 
prQ&Hation of the aforesaid pretended marriage as 

aforesaid, the said A B was a major 

of the age of about years, but that the said C 

D ■ , otherwise , was a minor only just 

turned of years of age ; and this, &c. 

That the said pretended marriage had and solenmhsed, ^^^« 
or rather profaned as aforesaid, was never consummated, 
as will be hereinafter more particulariy pleaded ; but 

that the sud A B and the said C ■ 

D* , otherwise , nevertheless, from and 

after the time thereof, lived and cohabited togedier, 
except as to sextual intercourse, as husband and wife, 
in manner as and at the several places also hereinafter 
more particularly pleaded. That they also, ever since 
thexr said marriage, in fiust save as hereinafter mentioned, 
have acknowledged each other aa and for husband and 
wife respectively, and that they were and are commonly 
accouiited, reputed, and taken as and for such respec- 
tively by and amongst their relations, friends, and ac- 
quaintances ; and this, &c. 

That on the night following the celebration, or rather Sixth, 
profiemalion of the said pretended marriage, the said 
A B ■ ■ ' desired tiiie said C ■ D , 

otherwise , to sleep with 

, spinster, (who had accompanied them to 
I as aforesaid,) as she had been theretofore accus- 
tomed to do; and which the said C D y other- 
wise 9 did accordingly, llat she also still, by 
the desire of the said A -^' B ^ oonti- 



380 MATRIMONIAL CAUSES. 

nued generally to sleep as before with her said sister 
during the rest of their stay in , and until their 

return to this country, their journey to which, firom 
, commenced about a week after the said pretended 
marriage had been there celebrated^ or rather profaned, 
as aforesaid : that at , however, on their said 

journey, the said A B came one 

morning into the bed-room and bed of the said C 

D , otherwise , (her said sister having on 

that night occupied a separate bed-room and bed,) and 
there lay with her for some time naked and alone, to 
wit in the said bed ; and this, &c* 
eyenth That on their return to this country, at or about the 
time in the next preceding article pleaded, the said 

A B and the said C D , 

otherwise , took up their residence at the 

, in Street, , where they con- 

tinued to reside for about three months. That during 
such whole time, (with the exception of certain nights, 

on which the said A — — B slept out 

of the said hotel, though where in particular on such 
nights, is unknown to the party proponent, and to his 

party, the said C3 D , otherwise ,) the 

said A B and the said C D— ^ 

otherwise , slept every night naked and 

alone in one and the same bed-room, in which were two 
beds however, and which beds, for the most, were 

occupied by the said A ^— B ■ and the 

said C D—— , otherwise , separately. 

That the said parties, nevertheless, passed whole nights, 
or parts of whole nights, during such period, naked and 
alone in one and the same bed, to wit, that of the said 
C D otherwise , who never refused 



IMPOTENCE. 381 

or declined^ but, on the contrary, rather at all times 

invited |he said A B ^'s access to 

her bed, as well during the period articulate as during 
the whole period of their cohabiting with each other 
hereinafter pleaded ; and this, &c. 
That in the autumn of the said year 18 , the said Eighth. 

A B— — and the said C D , 

otherwise , went on a visit to the , 

since deceased, of the said C D ^ other- 

vdse , at , near , where 

they continued for about six weeks, during which whole 
time they occupied one and the same bed-room, and 
during about the first half of which they lay every night 
naked and alone in one and the same bed. That from * 

(after a short visit paid to an of the 

said C D , otherwise , resident at 

in the county of , and where the said 

C D , otherwbe , by desire of the 

said A B ^ slept with her the 

aforesaid , who had accompanied them 
ther^ the said parties returned to the Hotel 

aforesaid, and at which hotel, as during their former 
stay thereat, they again occupied a double-bedded 
room. That from the said Hotel the said A— 
B and C D y otherwise 

, ifrent to lodgings in , and 

from such to other lodgings in , and from 

such last-mentioned lodgings to the Hotel, in 

Street, , respectively, where they conti- 

nued to live and reside until the of the year ''^ 

18 • That in the of 18 the said parties 

again went abroad, viz., vid and , to ^ 

whne ihey resided for about three months. That after 



S82 MATRIMONIAL CAUSES. 

sadhi time, to wit, in the of 18 , they made 

several tours together in , still, however, from 

time to time, returning to and making' their prin- 

cipal place of residence, until the spring of 18 , when 
they went into together. That during aU 

such time the said A B absented 

himself from the bed, and mostly from the bed-room, 

of the said C D , otherwise , and con- 

standy slept in a separate bed, and mostiy in a separate 

bed-room, from that of the said C D , 

otherwise , during all such time ; and this, &c. 

Ninth. That the said parties, after staying for some time 

first in as aforesaid, and afterwaitls at 

and respectively, returned together to this 

country, to wit, in or about the month- of , 

18 , and again took up their residence at the 

Hotel, m Street, , aforesaid. That 

from the said hotel to wit, in or about the montii of 

,18 , the said C D-^ otherwise 

, went on visits successively to her father, the 
aforesaid , at , in the 

county of ; to her aforesaid grandaunt, at 

, near aforesaid ; and to 

, the brother of the said A 

B— — , at also in ; and thai 

during the stay at such last^mentioned place, where, 
on her arrival, she was -met by tiie said A - ■ ■ 

B , and which lasted for about six weeks—'*-") 

said A Bi slept every night naked and 
alone in one and the same bed with tlie said C 



D J otherwise • That the said A 



B— — — and the said C D otherwise 

returned together in the month of 



IMPOTBNCB. 383 

, in the said year 18 — ^ to the said 
HoteL; and tins, &o. 

That the said A B and the Tenth. 

sud C D ^ otherwise y went together 

from the said Hotel to lodgings in 

Street^ and aftarwards^ to wit, in or abont the 
month of , 18-^^ to other lodgings in 

Street^ where they oontinued for about a year and a 
quarter. That during the whole of such their residenee 
at the said Hotels and at e^ of their said 

sacoessivdy^ the said A B 



wholly absented himself from the bed of the said C 



D y otherwise , and that he^ the 

A B i slept but one night in the 

add house even in Street (and then only in 

oonsequenoe of having been detained there by the ex- 
treme severity of the weather) during the whole time 
aforesaidy that &ey occupied lodgings therein^ though 
where he slept, out of such house at such time^ is un- 
known to tiie party proponent and to his party, the 

said CS D , otherwise • That tiie 

aforesaid , spinster, was principally 

resident witli tbe said C D y otherwise 

y during that period; and that on the one night on 
which the said A——— B slept in tiie 

bouse, during that period as aforesaid, he dept there in 
the bed usually occupied by the said , 

Sjpmatety who resigned it for his accommodation, and 

slept with her nster, the said C D otherwise 

, on that night; and this, &c. 
That in or about the month of ,18 ,the Eleventh. 

said A B , and the said C 

D ■ , otherwise , left Street, afore- 



384 MATRIMONIAL CAUSES. 

said, and went to , accompanied by the said 

, where, at the end of about six weeks, 
the said (who in the meantime had 

constantly slept with her said , the said C 

D , otherwise , the said A — 

B occupying a separate bed-room,) caught a 

fever, of which disease she the said 

soon after died there. That the said A 

B and the said C D , otherwise 

, returned to upon that event, and 

from such time lived together successively at the afore- 
said Hotel, ; at , in the 
county of ; and at lodgings in Street, 
; and then again at the said Hotel, 
until the month of , 18 — ; but that during 

no part of such time did or would the said A 

B lie in the same bed, or save only occasion- 
ally, (such occassions being rare,) occupy the same bed- 

room with the said C D , otherwise ; 

and this, &c. 
Twelfth. That in the month of 18 — , the said 

A B and the said C D , 

otherwise , went to together, and took 

up their residence there at the Hotel, where, 

however, they had still separate bed-rooms, though the 

gaid A B used to visit the said 

C D , otherwise s in her said separate 

bed-room every morning, and, from his regular habit of 
so doing, passed at the said hotel, or was taken for, her 
medical attendant. That from the said hotel the said 
parties went into lodgings, and afterwards, successively, 
into two cottages, all situate in or near the said town of 
, in all of which, however, as well as in the 



IMPOTBKCE. S85 



Other places aforesaid, the said A B 

stQl absented himself from the bed of the said C 



D ^ otherwise ; and that whilst resident 

at the last of such cottages, to wit, in or about the 

month of ,18, the said A B 

left altogether, and finally ceased to cohabit in any 

sort with the said C D , otherwise 

who hath since that tiihe seen him, the said A 
B , but on two occasions only. 



and both times in the presence of a third person ; and 
this, &c. 
That during all and singular the nights and parts of Thirteenth. 

nights that the said A B and the 

said C D , otherwise lay, naked 

and alone, in one and the same bed-room and bed, as 
pleaded in the sixth, seventh, eighth, ninth, and ele- 
venth articles of this Ubel, the said C D 

otherwise , was apt and fit for coition, and 

was desirous of the conjugal embraces of him, the said 

^ B ^ and willing to be carnally 

known, in order to become a mother, by him, and gave 
herself up to him, without any reserve, for that purpose 
accordingly ; also that during the whole thereof, save 

as hereinafter excepted, the said A B 

was of sound and perfect bodily health, but that» 
notwithstanding the premises, he the said A 
B - , neither ever did nor was ever able to 

consummate his aforesaid pretended marriage with the 

said C D > otherwise , who is still a 

virgin, and has never been carnally known by man, as 
will appear on due inspection of her person (if neces- 
sary,) to competent judges (physicians and surgeons or 
others) ; and this, &c. 

G c 



MATRIMONIAL CArSB^. 



Fouiteenih. 



That the said A- 



Fifteenth. 



I >i i > I B I m m t »— — g pttltS of 

generation and sexual or seminal organs were and are 
not sndb, or in the same state, as are the same parts 
and orgtoa in men capable of having conneadon with 
and of the e«mal knowledge of woman; and the paity 
proponent expressly alleges and propounds, that it will 
appear to eompetent judges, (physicians and surgoonB 
or others,) on a dae examination of his the said 

A B ■ ■ .^s person, that such was and is the 

fact, and that he, the said A B ■ > w 

well at the time of his aforesaid pretended mairisge 



with' the said C- 



D 



otherwise 



as 



before and ever since the same, hath been md now is 
naturally impotent or incapable of knowing any woman 
eamaUy; and that it will also further appear to sodi 
competent judges, on such due examination, that tlie 
flaid A B ^s natural impotency afore- 

said was and is irremediable, and not to be removed or 
relieved by art; and this, &C 
That on the occasion of an interview, ^^ch the said 

A ' ■ 1^ B had with the said C— — D • 

oAerwise , at the aforesaid 

Hotel, in the month of last, to wit, of in die 

present year, IB - , he, the said A i - R — ^ 

admitted to the said € ■ ■■ .D<«^«— , otherwise 
(}n Ae presence and hearing of a third person 
present during and throughout their said intervieir,) 
that their said pretended marriage was a nullity, and 
that he knew it to be in her power to procure a legal 
sentence declaring it so to be, as he had taken several 
opinions on the subject, which went to that effect 
That it was a delicate business (he added) for her to 
move in, but that she, as the injured party, mmst be 



lMPOT£MCE. Sdy 

the pkdntiff in any suit to obtain such a sentence; and 
that, knowing as he did the sufferer which she had 
been in consequence of their said marriage, he could 
not blame her for being the plaintiff in any suit which 
afforded her the means of releasing herself from it; or 

he^ the said A • B ■ / on the said occa^ 

sion, expressed himself to the vdry effeet^ or in .wordi 
of the identical meaning and impoit articulate; and 
this, &c. 

That the said C ■ "• D ' ■' ■ , otherwise j Sixteenth. 

until recently, concealed from her l^;al and other ad« 
YxserB, as well the fact of the non-consummation^ of hef 

aforesaid pretended marriage with the said A— = *-* — - 

B , as the cause thereof, and the other, o^ 

most of the other Acts and circumstances connected 
therewith, and inferring or tending to evidence the 
same, hereinbefore pleaded, and that her motive to 
such concealment, was female delicacy, coupled with 
her ignorance, until recently^ of there being facts which, 
upon proof, would entitle her to a sentence pronounc- 
ing and declaring her said pretended marriage with the 

said A — B Hull and void in law. 

That on toch better information, recently obtained as 

aforesaid, she, the said C D , otherwise 

disddsed the said faets to hear said legal and other 
advisers, and that the result of such disdoarure has been 
the institution of this Mit on her behalf; and this, &c« 
&e« &e* &C. 

The libel having been brcnight in and admitted,, and 
the issue and personal answers of the defendant gfiven 
in the negictive, the promoter ipplies to the court to 
asa^a the former to undergo an inspection of his 

oo2 



368 MATRIMONIAL CAUSES. 

person. Three medical practitioners, viz., two physi- 
cians and a surgeon, or two surgeons and a physician, 
are then^ on the recommendation of the promoter, and 
with the consent of tlie defendant, (who is at liberty, 
if he chooses, to name one or more himself,) are ap- 
pointed or selected by the court, ^^ to inspect the person 
of the party and to examine particularly the state and 
condition of his parts of generation, and to report whe- 
ther he is capable of performing the act of generation, 
and, if he be incapable of so doing, whether such his 
impotency can be remedied so as to enable him to per- 
form the act of generation/' 

If the party does not, through his proctor, declare 
his readiness to undergo such inspection, his compli- 
ance is enforced by the following monition :^- 

Monition. 

Monition for Herbert Jenner Fust, Knight, Doctor of Laws, Official 
inspection. Principal of the Arches Court of Canterbury law- 

fully constituted, to all and singular clerks and 
literate persons, whomsoever and wheresoever, in 
and throughout the whole province of Canterbury, 
greeting: 
Whereas we, rightly and duly proceeding in a certain 
cause of nullity of marriage, by reason of impotency, 
which is now depending before us in judgment, by 
virtue of letters of request, under the hand and seal of 
the Worshipful and Reverend y Clerk, 

Doctor in Divinity, Official Principal of the Consisto- 
rial and Episcopal Court of , between M. 

F. V«, spinster, falsely called S., and pretended to be 
the wife of J. S., Esquire, the party promoting the said 



IMPOTENCC. 389 

caase^ on the one part^ and the said J. S. of the parish 
of y in the county of , and diocese of 

, the party against whom the said cause is 
promoted, on the other part, have, at the petition of the 
proctor of the said M.F. V., spinster, fidsely called S., de- 
creed the said J. S. to be monished and called to appear in 
judgment on the day, at the time and place, and to the 
effect hereinafter mentioned ; (justice so requiring :) we 
do therefore hereby authorize, empower, and strictly en- 
join and command you, jointly and severally, perempto- 
rily to monishand cite, or cause to be monished and cited, 
the said J. S. to appear personally before us, our surro- 
gate, or some other competent judge in this behalf, in 
the Ck>mmon Hall of Doctors' Commons, situate in the 
parish of Saint Benedict, near Paul's Wharf, London, 
and place of judicature there, on Tuesday, the day 
of , 18 , at the hour of ten in the forenoon of 

the same day, and there to abide, if occasion require, 
during the sitting of the said court, then and there to 
submit to an inspection of his parts of generation, to 
be made secretly by persons to be appointed by us, or 
our surrogate, or some other competent judge in this 
behalf for that purpose, and further to do, &c. 

At the same stage of the proceedings, the proctor of 
the promoter or wife will take similar steps to obtain 
an authorized inspection of her person by inspectors 
appointed by the court. 

Previously to the inspection, the medical nien se- 
lected for the purpose are produced before a surrogate 
of the court, in order to be sworn. The oath which is 
administered to them on the occasion of their examina- 
tion of the female, is to the effect '^ that they will faith- 
fully, and according to the best of their skill, inspect the 



SOO MATRIMONIAL CAUSES. 

parts of generation of A* B.> and make a just and true 
report to the judge whether she is or is not a viigin, 
and hath or hath not any impediment on her part to 
prevent the consummatbn of marriage/' 

The oath administered to the inspectors, prior to the 
examination of the man, is to the effect following^ vix^ 
^ that they will faithfully, and according to the best of 
their skill, inspect the parts of generation of C. D«,and 
make a just and true report to the judge whether he is 
oapaUa of performing the act of generation, and, if he 
be incapable of so doing, whether such his impotency 
can be remedied so as to enable him to perform the act 
of generation/' 

Such inspections will take place at the house of the 
party or of one of the inspectors. The report, when 
completed and drawn up by the latter, is deUyered, 
sealed up, into die custody of the registrar, to be opened 
when publication shall have passed. 

The following forms will illustrate each report s*^ 

Report* 

Report of We, the undecsigned, having been sworn fiutUulIy, 

and according to the best of our skill and ability, to 

inspect the parts of generation of A B , the 

peirty in a cause depending in the Court of 

s latitxieA ^ 

,'' and to make a just and true report to flie Judge 
of the ssid court, or his surrogate, whether he the said 
X—— B hath, or hath not, some natural and con- 

stant impolency, imbecility, or impediment, on bis part, 
and whether he is not naturally frigid and impotent and 
wheUy incapable of knowing a woman carnally, afid by 
reason thereof was always, and at.tbis present time is, 



niPOTBifciu S91 

wholly incapable of p erf o rming conjugal rights, or of 
oonaammating the marriage solemnised between him the 

said' A B , and C D • the other 

party in this caose, and whether such his natural and 
constant firigidity or impotency can or cannot be relieved 
or removed by tiie art or help of any physician or 
suigeon, do report that we have faithfully, and according 
to the best of our skill and ability, inspected the person 

of the sud A B who acknowledges hinraelf 

to be the party in the said cause, and we believe that he 
is naturally frigid and impotent, and utterly incapable of 
fulfilling conjugal rites. 



ReporL 

We the undersigned having been sworn ftithfuUy and Report of 
acccHTding to the best of our skill and ability, to inspect "^P^**"*- 

the parts of generation of C D , otherwise 

, one of the parties in a cause depending in the 
Court of ' 9 entitled '' 

/* and to make a just and true report to 
the judge of the said court, or his surrogate, whether 

she, the aaid C ■ - D , otherwise , is or is not 

a virgin, and hath or hath not any impediment on her 
part to prevent the consummation of the marriage 
solemnized between her and A - B , the other 

party in the said cause, do report that we have faith- 
fully, and accordnig to the best of our skill and ability, 
uupected the parts of generation of the said C— D , 
otherwise (who acknowledges herself to us 

to be the party in the said cause, and has been pro- 
duced to us as such by her proctor on our being 



392 M4TRI%fO!fI.4I. CACHES. 

sworn., and we find that the parts of generation of the 

said C D , are retrulariy formed in all respects 

that there is no impeuiaitrnt on her part to the ccnflani- 

mation of marriage with A B , or anv other 

person, that the part called the hymen exists in her 
person in an entire state, and we conclude from the lat- 
ter circumstance, as well as from the general condition 

of the Ta^na at its entrance, that the said C 

D is a virgin. 

This suit does not present any further peculiarity. 

If the evidence in support of the impotency is suffi- 
ciently stringent, the court will pronounce ^* that the 
marriage in question was had between the parties, whilst 
one of them was naturally impotent, and incapable 
of consummating the same, and that such party so con- 
tinues to be, and therefore the said marriage was and 
is absolutely null and void from the beginning ; that the 
other party was and is free firom all bond of marriage 
with the former, and at full liberty to contract and so- 
lemnize marriage with any other persdn/^ 



MULUTY OF MARRIAGE BY REASON OP FORMER MARRIAGE. 393 



NULLITY OF MARRIAGE BY REASON OF A 

FORMER MARRIAGE. 

It is almost unnecessary to say that a second marriage 
contracted during the lifetime of the parties^ by either 
of them^ is null and void ab initio* Notwithstanding 
the obvious fact of its nullity, it is occasionally neces- 
sary to obtain a declaratory sentence from the eccle- 
siastical judge {a). 

The following forms will illustrate the citation, libel, 
and sentence in a suit of this kind, which in other re- 
spects present no peculiarity. 

Citation. 

Charles James, by Divine permission. Bishop of Lon- Ciution for 
don to all and singular clerks, and literate mantra by 
persons, whomsoever and wheresoever, in and reason of 
throughout our whole diocese of London, greet- Huge. 
ing:— 
We do hereby authorize, empower, and strictly 
command you, jointly and severally, peremptorily to 
cite, or cause to be cited, Sarah Dumbleton, (wife of 
Samuel Thomas Dumbleton,) of the parish of Saint 
Marylefaone, in the county of Middlesex, and our dio- 
cese of London aforesaid, fiedsely calling herself Sarah 
L^ge, and pretending to be the wife of Henry Legge, 
to appear personally, or by her proctor duly consti- 
tuted, before the Right Honourable Stephen Lushing- 

(fl) Searle v. Price, Hagg. Morphew, Phill. R. vol. 2, 
C. R. vol. 2, p. 187. Bayard v. p. 321. 



394 MATRIMONIAL CAU8B8. 

ton^ Doctor of Laws, oar Vicar-General, and Official 
Principal of our Consistorial and Episcopal Cknirt of 
London, lawfully constituted, his surrogate, or some 
other competent judge in this behalf in the Common 
Hall of Doctors' Commons, situate in ihe parish of 
Saint Benedict, near FauPs Wharf, London, or place of 
judicature there, on the third day after she shall have 
been served with these presents, if it be a general ses- 
sion-<lay, bye-day, extra or additional court-day, of our 
said court, otherwise on the general session bye-day, 
extra, or additional court-day of our said court then 
next ensuing, at the hour of the sitting of the court, 
and there to abide, if occasion require, during its con- 
tinuance, then and there to answer to the said Henry 
Legge of the parish of Saint Luke, Old Street, in the 
county of Middlesex, in a certain cause of nullity of 
marriage by reason of the former marriage of her, the 
said Sarah Dumbleton; and further to do, &c« 

Libel. 

label of nul- In the name of God, amen, &c. 

li^L^l!!*!^. That in or about the month of October, 1820, the 

nage by rea- 

■on of former said Samuel Thomas Dumbleton, being then a bachelor 
'^^^' and the said Sarah Dumbleton, (falsely calling herself 
Legge and pretending to be the wife of the said Henry 
Legge,) being at such time Sarah Harrison, and a 
widow, were lawfully joined together in holy matrimony 
according to the rites and eeremonies of the Church of 
England, as by law established, in the parish church of 
Saint James, Westminster, in the county of Middlesex, 
by the Reverend Peter Felix, Clerk, a Priest or Minis- 
ter in Holy Orders of the Church of England, or offi- 



KULLITY OF MARRIAGE BY REASON OF FORMER MARRIAOfe. 395 

oiating as such) in ihe presence and hearing of diTers 
credible witnesses, and that an entry of such manriage 
was doly made in the ngister-book of marriages kept 
in and for the said parish of Saint James^ Westminster, 
for the said year, 1820; and thb, 8ic 

That in part supply of proof of the premises in the Second, 
next preceding article pleaded, and to all other intents 
and pmposes in the law, the party proponent exhibits, 
hereto annexes, and prays to be here read and inserted, 
and taken as part and puroei hereof, a certain paper, 
partly written and pardy printed, marked A«, and 
alleges and paropomids the same to be and contain a 
trae copy of the or^;inal entry of the marriage ol- tiie 
said Samuel Thomas Dumbleton and Sarah Dombleton, 
formerly Harrison, widow, in the preceding article 
mentioned. That the same hath been faithfuUy ex« 
traoted from the register-^book of maniages kept in and 
for the said parish of Saint James, Westminster,^ for 
the said year 1820, and carefully collated with t3ie ori- 
ginal entry, now r^omaining therein, and found to agree 
therewith. That all and singular the contents of the 
said exhibit were and are true, that all things were so 
had aod done as therein contained, and that Sarah 
Harrison therein-mentioned as mamed to the said 
Samuel ThcMtuas Dumbleton, and Sarah Dumbleton, 
wife of the said Samuel .Thomas. Dumbleton, &lsely 
calling h^self L^ge, and pretending to be the wife 
of Henry Legg^ the other party in this cause, was and 
is one and the same person and not divers; andthi8,&c. 

That the said Samuel Thomaa Dumbleton and his xhird. 
wife, the said Sarah Dumbleton, from and after the said 
manriage, (which ^ they duly consummated,) lived and 
cohabited together as lawful husband and wife, first in 



3l>6 MATRIMONIAL CAUSES. 

London for a short tiine, then at or in the neighbour- 
hood of Edgware, in the county of Middlesex^ for 
the period of about six months, at the expiration of 
which latter time, by consent or otherwise, they sepa- 
rated from each other, and from which time they have 
never lived and cohabited together to the knowledge of 
the party proponent, or of his party, the said Henry 
Legge; and this, &c« 

Fourth. That the said Samuel Thomas Dumbleton, who was 

naturally a person of unsteady conduct, and loose and 
dissipated habits, spent his boyhood at Badby in the 
county of Northampton, whither his mother had re- 
moved from Newnham, in that county, on the death of 
his father, who died when he was very young. That £rom 
Badby, he removed with his sister Cucy and her husband, 
William Chillingworth, to Edgware in the county of Mid- 
dlesex, where the same William Chillingworth taught him 
his own business, to wit, that of a plasterer, and that he 
worked as such at E^dgware, and in the neighbourhood, 
until shortly before the marriage aforesaid between him 
the said Samuel Thomas Dumbleton and the said Sarah 
Dumbleton, and with whom he also for some time 
cohabited there, as hereinbefore pleaded; and this, &c. 

Fifth. That the said Samuel Thomas Dumbleton, for some 

time after his said separation from his said wife, men- 
tioned in the third article of this libel, worked at his 
trade as a jdasterer some time with his brother-in-law, 
the aforesaid William Chillingworth, at Edgware, and 
in its neighbourhood, but that since he disappeared 
therefrom, to wit, in or about the year 1834, the parti- 
culars of his history, save as hereinafter pleaded, are 
unknown to the party proponent, and to his party. 
But the party proponent expressly alleges and pro- 



NULLITY OF MARRIAGE BY REASON OF FORMER MARRIAGE, 397 

pounds, diat the said Samuel Thomas Dumbleton was 
liying on the 7th day of February, 1833, hereinafter- 
mentioned, and ' long subsequent thereto, as is here* 
inafter more particularly pleaded; and this, &c. 

That on the first Thursday, in September, 1835, ^^**^' 
(being Steventon Feast,) the said Samuel Thomas 
Dumbleton, called and dined at the King's Head Inn, 
in Daventry, in the county of Northampton, and there, 
upon such occasion, he contracted a debt, or ran up a 
bill, (still unpaid,) the persons at the inn giving him 
credit on his representing himself as a traveller for 
some spirit merchants, and on thefiuth of which repre- 
sentation^ at his instance, they gave him an order on 
his pretended employers, for two gallons of brandy, 
and also from finding, as the &ct was, that he was well 
known to a person there at the inn, who was himself a 
person known and of good credit there; for the party pro« 
ponent expressly alleges and propounds that so being 
at the said King's Head Inn, at Daven'n^ ^. that day, 
the sai' "Sair '• . as Uumlj'^ ton then and there 

' . *. V ui or cncoimtered a person from Newn- .^, 

\M aforesaid, under whose roof he himself as a boy 
had resided for a year and a half, with his mother and 
two sisters, previous to their removal from such place, 
to Badby aforesaid, and who otherwise well knew him. 
That the said Samuel Thomas Dumbleton and the 
said person mutually recognizing each other on the 
said occasion, the said person, at his solicitation, dmed 
at the said King's Head Inn, with the said Samuel 
Thomas Dumbleton on that day, and that the said 
Samuel Thomas Dumbleton then, as the fact was, told 
the said person, as they conversed on femily afiairs, 
what he before knew, though by report only, namely 



398 MATRIMONIAL CAUSES. 

that the said Samtid Thomas Dumbleton had married 
a widow some years before, but was not then living or 
cohabitbig with his vdfe; and this, &e. 

Seventh. That in or about the same month of September, 

18S5, the said Samuel Thomas Dumbkton called at the 
house of a relation at Badby aforesaid, who had been 
his schoolfellow there, and who well knew both him 
and his family. That on the said occasion, whilst par- 
taking of some refreshment, the said Samuel Thomas 
Dumbleton, after talking over old times and comparing 
school recollections with his said schoolfellow, told him, 
amoi^ other things, that he had been married, but 
was livbfig apart from his wife, with whom, he said, that 
he had had scmie property, but to whom he attributed 
certain infirmities of temper, and whom he otherwise 
spoke of in terms of disparagement ; and this, &c. 

Eighth. That the '^''^ Sar-^el lliomas Dumbleton was also 



alluded to in uie «.v>s. 
libel, in the year 1833, long sut^ocv^. 
17th day of January in that year, and in the , 
1835, and 1836, all, some, or one of them, but smvc 
which time he hath not been seen or conversed with by 
any person or persons at present known to the party 
proponent or his party aforesaid ; and this, &c. 
Ninth. That the said Sarah Dumbleton, soon after her sepa- 

ration from her husband, pleaded in the third article of 
tins libel, went into service as housekeeper in a large 
establishment, where she continued until in, or about 
the year 1825, and then went to live with the said 
Henry Legge (party in this cause) in the same capacity, 
and continued to do so until her pretended marriage 



NULLITY OF MARRIAGE BY RBA80N OF FORMER MARRIAGE. 390 

with him, the said Henry L^ge^ hereinafter pleaded ; 
and thisy &c. 

That notwithstanding the premises hereinbefore Tenth. 
pleaded^ the said Sarah Dumbleton^ in the month of 
January^ I8SS9 accepted the courtship and addresses in 
the way of marriage of the said Henry Legge, repre- 
senling herself as then beings and passing as and for a 
widow^ and that accordingly^ to wit, on or about the 
l7tih day of the said month of Janiuuy, the said Henry 
Legge and Sarah Dmnbleton (so passing and repre« 
senting herself as aforesaid,) were in fact, but unlaw-' 
foUy, joined together in holy matrimony^ according to 
the rites and ceremonies of the Church of England, as 
by law established, in the parish church of Saint Mary* 
lebone, in the county of Middlesex, by the Reverend 
John Moore, Clerk, a Priest or Minister in Holy Orders 
of the Church of England, or officiating as such, in the 
presence of divers credible witnesses, and that an entry 
of such marriage in fact so had, or rather profaned, was 
duly made in the register-book of marriages, kept in and 
for the said parish for the said year. And the party 
proponent expressly allies and propounds that, by 
reason of the premises, the said marriage in fact so had, 
or rather profaned between the said parties, was and is 
to all intents and purposes null and void in law ; and * 
this, &c 

That in part supply of proof of the premises pleaded Eleventh. 
and set forth in the next preceding article of this libel, 
and to all other intents and purposes in die law, the 
party proponent exhibits, hereto annexes, and prays to 
be here read and inserted and taken as part and parcel 
hereof, a certain paper writing, partly printed and partly 
written, marked B, and alleges and propounds the same 



400 



MATRIMONIAL CAUSES. 



Twelfth. 

Thirteenth. 

Fourteenth. 



to be and contun a true copy of the entry of the fiict 
of marriage between the said Henry Legge and Sarah 
Dumbleton, in the preceding article pleaded. That the 
same hath been faithfully extracted from the register- 
book of marriages kept in and for the said parish of 
Saint Marylebone, in the county of Middlesex, for the 
said year 1833, and carefully collated with the original 
entry now remaining therein and found to agree there- 
with. That all and singular the contents of the said 
exhibit were and are true, that all things were so had 
and done as therein contained, and that Henry Le^ 
and Sarah Dumbleton therein mentioned, and Henry 
Legge and Sarah Dumbleton (wife of Samuel Thomas 
Dumbleton, formerly Harrison,) the parties in this 
cause, were and are the same persons lespectiyely, and 
not divers ; and this, &c. 

That {residence.] 

That {jtaitdiction.) 

That all and singular, &c., the party proponent prays 
that the pretended marriage so had, as before pleaded, 
between the said Henry Legge and Sarah Dumbleton 
may, by reason of the premises, be pronounced null 
and void, to all intents and purposes in the law what- 
soever, and that otherwise right and justice, &c. 



Sentence qf Nullity. 

Sentence of '^ ^® name of God, amen. We Stephen Lush- 

niillity of ington, Doctor of Laws, Vicar-General of the Right 
rewon^of for- Reverend Father in God, Charles James, by Divine 
mermarriage. permission. Lord Bishop of London, lawfully consti* 
tuted, rightly and duly proceeding, having heard, seen^ 
and understood, and fully and maturely discussed the 



NULLITY OF MARRIAGE BY REASON OF FORMER MARRIAGE. 401 

merits and circumstances of certain cause of nullity of 
marriage^ by reason of a former marriage, now depending 
before us in judgment in this court, promoted and 
brought by Henry Legge against Sarah Dumbleton, of the 
parish of Saint Marylebone, in the county of Middlesex 
and diocese of London, the wife of Samuel Thomas Dum- 
bleton, but falsely calling herself Legge and pretending 
to be the wife of the said Henry Legge ; and the parties 
aforesaid lawfully appearing before us in judgment by 
their proctors, and the proctor for the said Henry Legge 
praying sentence to be given for, and justice to be done 
to his party, and the proctor for the said Sarah Dum- 
bleton praying justice; and we having careftdly and 
diligently searched into and considered the whole pro- 
ceedings had and done before us in the said cause, and 
having observed all and singular the matters and things 
that by law in this behalf ought to be observed, have 
thought fit, and do thus think fit, to proceed to the 
giving our definitive sentence or final decree in the said 
cause, in manner followmg, to wit : forasmuch as we 
have by the acts enacted, deduced, alleged, exhibited, 
pleaded^ propounded, and proved in the said cause, 
found and clearly discovered that the proctor of the 
said Henry Legge hadi sufficiently founded and proved 
the intention deduced in a certain Ubel, with exhibits 
annexed, given, and admitted in the said cause, on the 
part and behalf of the said Henry Legge, and now re« 
maining in the registry of the said court, (which said 
libel and exhibits we take, and will to have taken, as if 
here read and inserted,) for us to pronounce, as herein- 
after is pronounced, and that nothing at least efiiectual 
in law hath, on the part and behalf of the said Sarah 
Dumbleton, been excepted, deduced, alleged, exhibited, 

D D 



402 MATRIMONIAL CAUSES. 

propounded^ or proved in the said cause, to defeat such 
intention. Therefore we, Stephen Lushington, Doctor 
of Laws, the Vicar-General and Official Principal 
aforesaid, having heard counsel in this behalf, on the 
part of the said Henry Legge, and also on the part of 
the said Sarah Dumbleton respectively, do pronounce, 
decree, and declare that the said Sarah Dumbleton, 
being then Sarah Harrison, widow, and free from all 
matrimonial contracts or engagements, did, at the time 
and place libellate, contract true, pure, and lawful 
marriage with the aforesaid Samuel Thomas Dumble- 
ton, then a bachelor, and also free from all matrimonial 
contracts and engagements, and did solemnize such 
marriage in the face of the church, and afterwards con- 
summated the same by carnal copulation, and that 
they the said Samuel Thomas Dumbleton and Sarah 
Dumbleton were and are lawful husband and wife, and 
for and as such were and are commonly accounted, re- 
puted, and taken ; and we do pronounce, decree, and 
declare for the force and validity of the marriage so 
had and solemnized between them the said Samuel 
Thomas Dumbleton and Sarah Dumbleton, to all intents 
and purposes in the law whatsoever, and we do also 
pronounce, decree, and declare, according to the lawful 
proofs made in the said cause as aforesaid, that the said 
Sarah Dumbleton, after the solemnization and consum- 
mation of her said marriage with the said Samuel 
Thomas Dumbleton, being altogether unmindful of her 
conjugal vow, and not having the fear of God before 
her eyes, but being instigated and seduced by the devil, 
did, at the time and place libellate, and under the false 
suggestion that she was then a widow and free from all 
matrimonial contracts and engagements, contract a 



14ULLITY OF MARRIAGE BY INSANITY OR IMBECILITY. 403 

pretended marriage with the aforesaid Henry Legge, 
but at the time of the solemnization^ or rather profa- 
nation^ of the said marriage between her the said Sarah 
Dumbleton and the said Henry Iiegge5 the aforesaid 
Samuel Thomas Dumbleton was living. Wherefore, 
and by reason of the premises, we do pronounce, de* 
cree, and declare that such marriage, or rather shew or 
effigy of marriage, so had and solemnized, or rather 
profaned between the said Henry Legge and Sarah 
Dumbleton, was and is null and void from the beginning 
to all interests and purposes in the law whatsoever, and 
by reason thereof that the said Henry Legge was and 
is free from all bond of marriage with her the said 
Sarah Dumbleton by this our definitive sentence or final 
decree, which we give and promulge by these presents. 



NULLITY OF MARRIAGE BY REASON OF 
INSANITY OR IMBECILITY. 

Unsoundness of mind, whether in the form of lunacy 
or imbecility and weakness, if it existed at the period 
of the fact of marriage, vitiates its legality, and if the 
party has not been found by a commission of lunacy to 
have been in that state, prior thereto, the Ecclesiastical 
Court will inquire into the matter and determine the 
l^;al status of the parties (a). 

(a) Turner v. Meyers, Hagg mouth v. Portsmouth, Hagg R. 
C. R. voL I, p. 417. Ports- vol. 1, p. 356. 15 Geo. 2, c. 30. 

D D 2 



404 MATRIMONIAL CAUSES. 

The suits are instituted by the committee or by the 
next friend of the lunatic. The latter case can only 
occur in the event of the party's minority. 

It is also competent to the party, if he or she has 
recovered his or her senses since the event, to institute 
the proceedings in his or her own name (6). 

The following forms will illustrate the citation, libel, 
and sentence in this suit : — 



Ciiation. 

(Station for Charles James, by Divine permission Bishop of London, 
SJS^V to aU and singular deAs and Uterate persons, 

reason of im- whomsoever and wheresover in and throughout our 

whole diocese of London, greeting ; 
We hereby authorize, empower, and strictly enjoin 
and command you, jointly and severally, peremptorily 
to cite, or cause to be cited. Watts Wilkinson, of the 
parish of Saint Mary, Islington, in the county of Mid- 
dlesex, and our diocese of London aforesaid, fidsely 
calling himself and pretending to be the lawful husband 
of Hannah Keningale Wilkinson, spinster, a person of 
weak and imbecile or unsound mind, as hereinafter men- 
tioned, to appear personally, or by his proctor duly 
constituted, before the Right Honourable Stephen 
Lushington, Doctor of Laws, our Vicar-General and 
Official Principal of our Consistorial and Episcopal 
Court of London, lawfully constituted, his surrogate, or 
some other competent judge in this behalf, in the Com- 
mon Hall of Doctors' Commons, situate in the parish of 
Saint Benedict, near Paul's Wharf, London^ and place 

(6) Turner y. Meyers, ut ante. 



NULLITY OF MARRIAGE BT INSANITY OR IMBECILITY. 405 

of judicature there^ on the third day after he shall 
have been served with these presents^ if it be a 
general session^ bye-day^ or additional court-day of our 
said court, otherwise on the general session^ bye- 
day, or additional court-day of our said court, 
then next ensuing, at the hour of the sitting of the 
court, and there to abide, if occasion require, during its 
continuance then and there to answer to the said Han- 
nah Eemngale WUkinson, spinster, a peison of weak 
and imbecile or unsound mind, acting by the Reverend 
Henry Watts Wilkinson, of Sudbury, in the county of 
Suffolk, Clerk, the natural and lawful father, and one 
of the guardians of the person of her the said Hannah 
Keningale Wilkinson, lawfully appointed by the High 
Court of Chancery of Great Britain, in a certain cause 
of nullity of marriage, by reason of her, the said 
Hannah Keningale Wilkinson, having been at the time 
of her pretended marriage with the said Watts Wilkin- 
son a person of weak and imbecile or unsound mind, 
and incapable of forming such a contract, and also by 
reason of the fraud and circumvention then practised 
on her, the said Hannah Keningale Wilkinson, by the 
said Watts Wilkinson and others upon the occasion of 
the said pretended marriage ; and further to do, &c. 

Libel. 

In the name of God, amen, &c. Libel of nul- 

That the same Hannah Keningale Wilkinson, spin- ^^^ b™";^. 
ster, felsely alleged to be the wife of Watts Wilkinson, son of imbe- 
the party in this cause, (acting by the said Reverend ^' 
Henry Watts Wilkinson, Clerk, her iather, and one of 
the guardians of her person, lawfully appointed,) was 
and is the lawful grand-daughter of Hannah Keningale, 



406 MATRIMONIAL CAUSES. 

late of Great Horkesley^ in the county of Essex^ widow, 
deceased, and that upon her obtaining the age of twenty- 
one years, (which she did in the month of May, 1837)) 
she became entitled to a fortune, consisting partly of 
real estate and partly of money in the funds, together 
amounting in value to the stun of about £4,500, under 
the will of the said Hannah Keningale ; and this, &c. 
Second. That the said Hannah Keningale Wilkinson is a 

person of mental weakness or imbedlity, approaching 
to if not actually constituting unsoundness of mind, 
and that such her mental weakness or imbecility was 
and is constant and incurable; that from her earliest 
years the utmost attention was paid to her education, 
but that she never ^ther did or could profit by the 
same to the extent of qualifying her to take a suitable 
part even in any the most ordinary concerns of life. 
That when or after she had become a woman in point 
of years, her whole conduct and demeanour, and even 
her appearance, continued to be those of a child ; that 
she could answer simple questions correctly, if not 
hurried or alarmed, but was quite incapable of any- 
thing like conversation, unless upon the most childish 
topics ; that she was taught just to read and write, by 
means of great pains bestowed upon her, but never 
could be taught to acquire, so as to retain, the com- 
monest rules of arithmetic ; that she never could be 
trusted with money, unless in very small sums, as she 
was incapable of understanding, and never could be 
taught to understand, either its use or its value ; and 
that in such and all other respects it was manifest, on 
her attaining her majority, that she, the said Hannah 
Keningale Wilkinson, was still unequal to the con- 
duct and management of herself and her affairs, and 
that there was every prospect, even at that time, 



NULLITY OF MAARIAGB BT INSANITY OR IMBECILITY. 407 

of her permanent continuance in that state ; and 
tfaisy &c. 

That up to the year 18379 when she attained the age Third* 
of twenty-one years^ the said Hannah Keningale Wil- 
kinson^ (save when at school, and save that quite in 
early life she had resided for some time with her 
grandmother, the aforesaid Hannah Keningale,) had 
lived with her father, the said Reverend Henry 
Watts Wilkinson, at Sudbury aforesaid, and the party 
proponent expressly allies and propounds that in 
the month of July, 1837) the said Reverend Henry 
Watts Wilkinson, in consequence of such her inca- 
padty aforesaid, and its probable continuance, caused 
a commission, in the nature of a writ de bmatico in- 
guirendoy to issue out of the High C!ourt of Chan- 
cery as for the purpose of inquiring into the state of 
mind of the said Hannah Keningale Wilkinson, but 
with the ultimate view of placing her person and 
property under the protection of that court. That 
the said Reverend Henry Watts Wilkinson, however, 
declined the further prosecution of the said commis- 
sion, in consequence of an opposition which was 
raised thereto, (and which opposition was got up at 
Sudbury by a person claiming to interfere as the 
next friend of the said Hannah Keningale WiUdn- 
aon,) but that both parties concurring in the expe- 
diency of extending the protection of the Court of 
Chancery to the person and property of the said 
Hannah Keningale Wilkinson by some means, owing 
to her mental weakness or imbedUty, a petition to 
that effect was presented to and heard by the then 
Lord Chancellor, on the 15th day of January, 1838, 
when his Lordship w.as pleased to direct that an 



408 MATRIMONIAL CAUSES. 

order for the purpose should be taken as nearly as 
might be, as in the case of an infiint, and to refer it 
to the Master to report as to guardians, with the usual 
inquiries, such as what would be proper to be allowed 
for the maintenance and support of the said Hannah 
Keningale Wilkinson, and out of what fund such 
allowance should be paid, and the like* That a refer- 
ence was accordingly had to the Master, who duly 
made his report, and which report was confirmed by an 
order dated the 1st day of August, 1838 ; that by 
this order, confirming the report of the Master, the 
High Court of Chancery appointed Thomas Fenn Ad- 
dison, William Bestoe Smith, the said Reverend Henry 
Watts Wilkinson, (the father of the said Hannah 
Keningale Wilkinson,) and the Reverend Joseph 
Fenn, Clerk, and the survivors and survivor of them^ 
guardians and guardian of the person of the said 
Hannah Keningale Wilkinson, and directed that the 
sum of j£l40 per annum should be allowed for her 
suitable maintenance and support ; and this, &c« 
Foarth. That in part supply of proof of the premises in the 

next preceding article mentioned, and to all other in- 
tents and purposes in the law whatsoever, the party 
proponent exhibits, hereto annexes, and prays to be 
here read and inserted, and taken as part and parcel 
hereof, a certain paper writing or exhibit, marked 
No. 1, and alleges and propounds the same to be and 
contain an official copy of the said order or decree con- 
firming the Master's report, and dated the first day of 
August, 1838, in the next preceding article mentioned; 
that the same hath been faithfully extracted firom the 
records of the High Court of Chancery of Great Bri- 
tain ^ that all and singular the contents of the said 



NULLITY OF UARRIA6B BY INSANITY OR IMBECILITY. 409 

exhibits were and are true ; that all things were so had 
and done as therein contained, and that Hannah Ke- 
ningale Wilkinson therein-mentioned, and the aforesaid 
Hannah Keningale Wilkinson, (falsely alleged to be 
the wife of Watts Wilkinson,) the party in this cause, 
acting by die said Reverend Henry Watts Wilkinson 
her fiither, and one of her guardians as aforesaid, was 
and is one and the same person and not divers; and 
this, &c* 

That pending the aforesaid proceedings in the High Fifth. 
Court of Chancery, to wit, some time in the year 1837, 
the said Hannah Keningale Wilkinson, spinster, was 
placed under the care of Mary Revell and Sarah Revell, 
spinsters, living at Sudbury, old and intimate friends of 
her family, with whom she has resided ever since, with 
the approbation of the High Court of Chancery, and 
the guardians of her person appointed by that court, as 
aforesaid; and the party proponent expressly alleges and 
propounds that notwithstanding the constant and un- 
wearied endeavours of the said Mary Revell and Sarah 
Revell to cultivate and improve her mind and understand- 
ing in that interval, she the said Hannah Keningale Wil- 
kinson hath all along remained and still is in the same 
state of mental weakness or imbecility, under which she 
was labouring at the time, when after mature delibera- 
tion and consideration of all the circumstances of the 
case, she was made award of Chancery as aforesaid, and 
that as she has increased in years it has become still 
more evident that her childishness and mental imbecility 
were and are incapable of any eflfectual improvement. 
That although she is now in the twenty -ninth year of her 
age, her physical and mental development, particularly 
the latter, are littie more than ordinarily those of chil- 



410 MATRIMONIAL CAUSES. 

dren of eight or nine years old; that her judgment is 
so defective that she is incapable of transacting the 
most ordinary and trivial affiEdrs without the guidance 
and superintendence of her friends^ and in particular that 
she was and is^ (as the party proponent expressly 
alleges and propounds^) utterly incapable of under- 
standing or of validly entering into any matrimonial 
contract; and this^ &c. 
Sixth. That Watts Wilkinson, the other party in this cause, 

is the lawful cousin german of the said Hannah Ee- 
ningale Wilkinson, spihster, (being the son of the 
Reverend Watts Wilkinson, of Sudbury, aforesaid, 
Clerk, the brother of the aforesaid Reverend Henry 
Watts Wilkinson,) and was well aware of her weak 
state of mind, and also of her being entitled in her own 
right to a property of some considerable amount, under 
the wiU of her grandmother, the aforesaid Hannah Ke- 
ningale. And the party proponent expressly allies 
and propounds that the said Watts Wilkinson who was 
and is a mariner by profession, and hath spent much of 
his time at sea, having fisdlen into some pecuniary em- 
barrassment, with the view and for the purpose of getting 
the control and enjoyment of such the property of 
the said Hannah Keningale Watts Wilkinson, availed 
himself of the opportunity afforded by his near rela- 
tionship to conspire, and devise, and concoct, with divers 
or some other persons or person unknown to the party 
proponent, a plan for carrying her off from the custody 
of those under whose care she then was, and getting a 
marriage or rather pretended marriage performed, or ra- 
ther profaned, between himself and the said Hannah Ke- 
ningale Wilkinson. And the party proponent expressly 
alleges and propounds that in furtherance of such 



NULLITY OF MARRIAOB BY INSANITY OR IMBECILITY. 411 

plan the said Watts Wilkinson (being then a minor of 
the age of twenty years and upwards, but under the 
age of twenty-one years,) on the 23rd day of the month 
of May hist, obtained (howsoever) a license as for the 
marriage of him the said Watts Wilkinson and the said 
Hannah Keningale Wilkinson, from the office of the 
Vicar-General of his Grace the Lord Archbishop, and 
in the affidavit to lead such license, he the said Watts 
Wilkinson swore, contrary to the hct, that he had 
attained his age of twenty-one years; and this, &c. 

That in part supply of proof of the premises Seventh. 
in the next preceding article pleaded, and to aU 
other intents and purposes in the law whatso- 
ever, the party proponent exhibits, hereto annexes, 
and prays to be here read and inserted, and taken as 
part and parcel hereof, a certain paper writing or 
exhibit marked No. 2, and alleges and propounds the 
same to be an official and true copy of the said affidavit 
to lead the license obtained (howsoever) by the said 
Watts Wilkinson from the office of the Vicar-General 
of his Grace the Lord Archbishop of Canterbury, as in 
the next preceding article pleaded; that the same hath 
been feithfully extracted from the records kept in the 
office of the Vicar-General aforesaid, and carefully col- 
lated with the said original affidavit made by the said 
Watts Wilkinson now remaining therein and that the 
same agrees therewith, and that Hannah Keningale Wil- 
kinson, spinster, and Watts Wilkinson therein-men- 
tioned, and the aforesaid Hannah Keningale Wilkinson, 
spinster, ialsely alleged to be the wife of the said Watts 
Wilkinson, (acting by her guardian the said Reverend 
Henry Watts Wilkinson as aforesaid,) and the said Watts 



412 MATRIMONIAL CAUSES. 

WiUdnson^ the parties in this csose, were and aie the 
same persons and not divers; and this, && 
Eighth. That having, (to wit, on the 23id day of May last,) 

obtained the license aforesaid, in manner af<Hesud, he 
the said Watts Wilkinson, on Saturday the 24lh day 
of the said month, called at the house of the Reverend 
Joseph Fenn, one of the gnardians of the person ap- 
pointed by the High Comt of Chancery as aforesaid, 
situate in Blackheath PbiIe, in the county of Kent, and 
where the said Ibnnah Keningale Wilkinson was staying 
for a few days in company with Miss Sarah ReveQ; that 
the said Watts Wilkinson, who arrived at the said Reve- 
rend Mr. Fenn's house about a quarter before ten o'dod: 
in the morning of the said day, then said or pretended 
that he had been deputed and had come to take his 
cousin, the said Hannah Keningale Wilkinson, to spend 
the day with two aunts of theirs, living in Brudenell 
Place, New North Road, Hozton, in the county of 
Middlesex ; that the said Hannah Keningale Wilkin- 
son manifesting, (though in a childish way,) much 
pleasure at the idea of visiting her said aunts^ the said 
Reverend Mr. Fenn readily assented to her accompa- 
nying her said cousin to their residence, only stipulating 
with him, (as did also the said Sarah Revell,) tiiat he 
should himself take chaige of her and bring her back 
again by six or seven o'clock in tiie evening. That the 
said Watts Wilkinson and the said Hannah Keningale 
Wilkinson then left the house together, in the said 
Mr. Fenn's chaise, and were driven by his servant as for 
the Greenwich terminus of the London and Greenwich 
Railway, but as soon as tiiey were out of sight of the 
house, the sidd Watts Wilkinson was desirous to be 



NULLITY OF MARRIAGE BY INSANITY OR IMBECILITY. 413 

and was driven by the servant to the steam-boat pier at 
Greenwich instead^ and where the said servant left the 
said Watts Wilkinson and the said Hannah Keningale 
Wilkinson, and returned home. And the party propo- 
nent expressly alleges and propomids that up to such 
time the said Watts Wilkinson had never had any in- 
tercourse of any sort or kind with the said Hannah 
Keningale Wilkinson^ nor had ever seen her^ (if atall^) 
so as to address or speak to her, save in the presence 
of one or other of the Misses Revell ; and this, &c. 

That soon after alighting from the said Reverend Ninth. 
Mr. Fenn's chaise, at the steam-boat pier, at Green- 
wich, as aforesaid, the said Watts Wilkinson took 
the said Hannah Keningale Wilkinson in a steam- 
boat to Blackwall, and thence by the Blackwall 
Railway to the Stepney station, on that railway, and 
near to which station is the parish church of Saint 
Dunstan, Stepney. That the said Watts Wilkinson 
being then and there joined by two persons, accomplices 
of his, named or using the names of George Andrew 
Nonweiler and Isabella Nonweiler respectively, imme- 
diately took ihe said Hannah Keningale Wilkinson, 
(die said two persons accompanying them,) into the 
said parish church, and where the Reverend John Ed- 
mund Cox, Clerk, one of the curates of the said parish, 
whose presence had been previously bespoken for that 
purpose, was waiting in order to perform the ceremony 
of marriage between two persons, and when and where 
such marriage ceremony was in ftct performed, or 
rather profaned, between him, the said Watts Wilkin- 
son and Hannah Keningale Wilkinson, spinster, 
according to the rites and ceremonies of the Church of 
England, by the said Reverend John Edmund Cox, 
Clerk, (in virtue of the license for that purpose, in fact. 



414 



MATRIMONIAL CAUSES. 



but unduly obtained as aforesaid^) and that an entry of 
such pretended marriage was afterwards made in the 
register-book of marriages kept in and for the said 
parish of Saint Dunstan^ Stepney ; and the party pro- 
ponent expressly alleges and propounds that the said 
Hannah Keningale Wilkinson^ spinster^ was at the time 
of such the performance, or rather profanation, of the 
said marriage ceremony, a person of weak and imbedle 
or unsound mind, and incapable of contracting mar- 
riage or of doing any other serious act requiring 
thought, judgment, and reflection, and that the said pre- 
tended marriage was effected by drcumvention and 
fraudident means made use of by the said Watts Wil- 
kinson and others engaged and procured by him to 
assist him therein, and that by reason of the premises 
such pretended marriage was and is null and inyalid 
in law to all intents and purposes whatsoever; and 
this, &c. 
Tenth. That in part supply of proof of the premises in the 

next preceding article mentioned, and to all other in- 
tents and purposes in the law whatsoever, the party 
proponent exhibits, hereto annexes, and prays to be 
here read and inserted and taken as part and parcel 
hereof, a certain paper writing, or exhibit, marked 
No. 3, and alleges and propounds the same to be and 
contain a true copy of the original entry of the pre- 
tended marriage of the said Watts Wilkinson and 
Hannah Keningale Wilkinson, spinster, in the nest 
preceding article mentioned; that the same hath been 
ftithfully extracted from the register-book of mar- 
riages, kept in and for the said parish of Stepney, com- 
monly called Saint Dunstan, Stepney, in the county 
of Middlesex, and carefully collated with the said origi- 
nal entry now remaining therein and found to agree 



NULLITY OF MARRIAOE BY INSANITY OR IMBECILITY. 415 

therewith^ and that Watts Wilkinson and Hannah 
Keningale Wilkinson^ therein-mentioned^ and Watts 
Wilkinson and Hannah Keningale Wilkinson^ spinster, 
falsely alleged to be the wife of him, the said Watts 
Wilkinson, (acting by her guardian the Reverend Henry 
Watts Wilkinson, aforesaid,) the partiesin this cause were 
and are the same persons and not divers; and this, &c« 

That in the course of their passage, on board Eleventh. 
the steam-boat from Greenwich to Blackwall, the 
said Watts Wilkinson asked the said Hannah Ken- 
ningale Wilkinson if she would marry him, to 
which she answered *^ no, by no means,'^ or to that 
effect, but that on his asking her, on their arrival at 
Stepney Church, if she would like to go and see it, she 
readily assented; that being on such pretence taken into 
the church, the said Hannah Keningale Wilkinson, 
spinster, when there went through the marriage cere- 
mony, (and which was instantly commenced,) doing 
what she was told to do, (and save as hereinafter ex- 
cepted,) saying as she was told to say, but uncon- 
sdously, and as it were mechanically and without being 
at all aware of the meaning or nature of the ceremony; 
that once during the performance or rather profimation 
of the said rite, when desired by the said Reverend John 
Edmund Cox to say ''I will^' she said '^no,'^ but that 
she said it in so timid and child-like a manner that the 
said Reverend John Edmund Cox did not hear her, and 
desired her to speak out, saying that else he could not 
go on with the service, and that upon this the said Isa^ 
bdla Nonweiler one of the accomplices of the said 
Watts Wilkinson urging her to say so, and the clerk 
also prompting her at the same time, she at length said 
^' I will,'' as desired, and thereupon the said Reverend 



416 MAT&IlfONlAL CAUSES. 

John Edmund Cox proceeded with and completed the 
service; and this, &c* 
Twelfth. That as soon as the said parties had adjourned from 

the altar to the Testry for the purpose of entering, and 
as the said Bererend John £dmnnd Cox was there 
entering, the pretended marriage in the register-book, 
the said Hannah Keningale Wilkinson, spinster, took 
off the ring which had been placed on her finger, and 
threw it down on the r^;ister-book, saying, ^ It's all a 
mistake ; Pm not married^ sir ; Fm sore papa will be 
very angry," or to that very effect, and adding, in a 
firetftd manner, ^ I said no," meaning during the per- 
formance of the service ; and that upon the said Reve- 
rend John Edmund Cox then saying, ^ I certainly did 
not so understand you, or 1 should have stopped the 
service," or to that effect, she, the said Hannah Kenin- 
gale Wilkinson, only kept repeating that it was all a 
mistake, and that she was not married, as she still in- 
sbted. That she also at first and for some time refused 
to sign the register, and otherwise conducted herself so 
strangely and incoherently, that the said .Reverend John 
Edmund Cox felt it to be his duty to send, and actually 
did send, for the rector of the parish, in order to take 
' his instructions as to what was fit to be done in the 
premises, but that, before the rector's arrival, the 
said Hannah Keningale Wilkinson, spinster, had been 
coerced by the urgent remonstrances and solicitations 
of the said Watts Wilkinson, and others his accomplices, 
into signing, and at length signed the register, and 
immediately thereupon all the said parties left the said 
church. And the party proponent further expressly 
alleges and propounds, that the conduct and manner of 
the said Hannah Keningale Wilkinson, during the pre- 



NULLITY OP MARRIAGE BY INSANITY OR IMBECILITY'. 4l7 

mises in this and the next preceding article of this libel 
mentioned, were such as to convince the said Reverend 
John Edmund Cox and others who were witnesses 
thereof, (and which conviction they still entertain,) 
that she, the said Hannah Keningale Wilkinson was, 
throughout the premises, mentally weak or imbecile ; 
and this, &c. 

That, after leaving the said church, the said Watts Tliirteenth. 
Wilkinson hired a cabriolet, (the first that offered itself,) 
and therein took or conveyed the said Hannah Kenin- 
gale Wilkinson, spinster, to the house of her aunts, 
situate in Brudenell Place, New North Road, Hoxton, 
aforesaid, where they arrived at about a quarter before 
one o'clock, and at the door of which house he left her 
and went away. That previous, however, to such their 
arrival at the said house, the said Watts Wilkinson 
tdd the said Hannah Keningale Wilkinson not to say, 
or that she need not say, anything to her said aunts 
about what had occurred, and at the same time took 
the wedding-ring away from her; but that the said 
Hannah Keningale Wilkinson, notwithstanding, imme^ 
diately told her said aunts, as well as she could, all that 
had taken jdace, and who (or one of whom,) took her 
back directly to the house of the Reverend Joseph 
Fenn^ at Blackheath aforesaid, where they arrived with 
her about half-past four o'clock the same afternoon: 
and the party proponent expressly alleges and pro- 
pounds^ that the said Watts Wilkinson hath had no 
communication whatever with the said Hannah Kenin- 
gale Wilkinson since the time when he left her with, or 
at the house of, her aunts as aforesaid, and, in parti- 
cular, that the said pretended marriage between him 

s E 



413 



MATBIMONIAL CAUSES. 



and the said Hannah Keningale Wilkinson, spinster, 
hath never been consummated ; and this, &c. 
Fourteenth. That the said Hannah Keningale Wilkinson, spinster, 
on being taken back to the house of the Reverend Mr. 
Fenn, as pleaded in the next preceding article of this 
libel, also gave (so far as she could) an account of what 
had taken place to the said Reverend Mr. Fenn, Miss 
Sarah Revell, and others. That^ amongst other things, 
the said Hannah Keningale Wilkinson said, in answer 
to a question put to her in respect thereto, that she 
had paid dghfpenoe for her own and the said Watts 
Wilkinson's £une8 by the steam-boat from Greenwich 
to Blackwall, one shilling for their fiures by the railway 
firom Blackwall to Stepney, and afterwards half-ar-crown 
for the hire of the cabriolet from Stepney to the house 
of her aunts at Hoxton; but the party proponent ex- 
pressly alleges and propounds, that she could not at aU 
make out how much she had spent altogether,. until 
after a long time and great calculation, having at first, 
after much consideration, stated the amount at three 
shillings and twopence. That on being, next day, 
taken by the Reverend Mr. Fenn to try and find out 
the church in which the marriage had been had^ in 
passing a church in Watney Street, Christ Churdi, 
(totally unlike Stepney Church in situation and appear- 
ance,) she said ^^she was sure that was the church;'' 
and that, when they came to Stepney Church, ^^ahe 
was equally sure that that (Stepney) was not the 
church.'' Also that on being again asked on that day, 
by Sarah Fenn, (wife of the said Reverend Joseph 
Fenn,) whether she intended to marry her cousin, the 
said Hannah Keningale Wilkinson answered, '^ Oh no ; 



KULLITY OP MARRIAGE BY INSANITY OR IMBECILITY. 419 

he is not steady^ and this is not his first offence $" and 
upon the said Sarah Fenn inquiring what other offence 
he had been guilty of^ she replied^ ^^ that he had once 
sat up till two o'clock in the morning ^^ and this^ &c. 

That since the celebration, or rather profanation, of Fifteenth, 
the ceremony of marriage between the said Watts Wil- 
kinson and Hannah Keningale Wilkinson, spinster, as 
hereinbefore pleaded, she, the said Hannah Keningale 
Wilkinson, spinster, hath been examined by competent 
persons^ medical men and others, and that the result of 
such their examination of her has been a conviction in 
their minds, that she is a person of weak and imbecile 
mind, and utterly incompetent to understand or trans- 
act any serious or important matter, and utterly inca* 
pable of contracting herself in lawful matrimony ; and 
tfais^ &c. 

The residence of the party. Sixteenth. 

The jurisdiction of the court. Seventeenth. 

That all and singular the premises were and are true. Eighteenth, 
public, and notorious, and thereof there was and is a 
public voice, fiune, and report, of which legal proof 
being made, the party proponent prays that the said 
pretended marriage, or rather show or effigy of a mar- 
riage, so as aforesaid, in fact, though unduly had and 
solemnized, or rather profieoied, between the said Watts 
Wilkinson and Hannah Keningale Wilkinson, may be 
pronounced and declared to have been, and to be, abso- 
lutely null and void to all intents and purposes in the 
law whatsoever, by reason of the said Hannah Kenin- 
gale Wilkinson being, at the time when the said pre- 
tended maniage was, as pretended, solemnized, of weak 
and imbecile or unsound mind, and incapable of form- 
ing such a contract, and also by reason of the fraud and 

EE 2 



420 MATRIMONIAL CAUSES. 

drcumyention practised on the said Hannah Keningale 
Wilkinson, spinster, by the said Watts Wilkinson 
and others, upon the said occasion, as hereinbefore 
pleaded, &c. 

Additional Articles. 

^*"*- That, since the commencement of this cause, an ap- 

plication hath been made to the High Court of Chan- 
cery of Great Britain, on behalf of the said Hannah 
Keningale Wilkinson, by John Chrisp Gooday, her 
next friend, in order to obtain the sanction of the said 
High Court of Chancery to the proceedings instituted 
in this court for the purpose of annulling the pretended 
marriage between the said Watts Wilkinson and the 
said Hannah Keningale Wilkinson ; and that, a peti- 
tion having been presented accordingly, the case was 
heard on Friday, the 18th day of July, 1845, before the 
Lord Chancellor, who, after hearing the said petition 
and certain orders of the said High Court of Chancery, 
dated respectively the 18tii day of October, 1837; the 
1st day of August, 1838 ; and the 28th day of Novem- 
ber, 1839 ; a decree, dated the said 28th day of No- 
vember, 1839; the Master's general report, dated the 
30th day of January, 1841 ; and certain further orders, 
dated the 15th day of July, 1842, and the 28th day of 
April, 1843 ; and certain affidavits, filed in support of 
the said petition, read, and counsd on both sides, was 
pleased to order that Henry Watts Wilkinson, Thomas 
Fenn Addison^ William Bestoe Smith, and Joseph 
Fenn, the guardians of the said Hannah Keningale 
Wilkinson, be at liberty to prosecute the suit com- 
menced in the Consistory Court of London, by and in 



NULLITY OF HARRIAOB BY INSANITY OR IMBECILITY. 421 

the name of the said Henry Watts Wilkinson, as the 
&ther of the said plaintiff, for annulling the pretended 
marriage between Watts Wilkinson, in the said peti- 
tion named, and the said Hannah Keningale Wilkinson, 
with the sanction of the said High Court of Chancery ; 
and his Lordship reserved the consideration of costs, 
but directed that any of the parties should be at liberty 
to apply to the said High Court of Chancery as there 
should be occasion; and this, &c. 

That in supply of proof of the premises in the next Second, 
preceding article mentioned, and to all other intents 
and purposes in the law whatsoever, the party propo- 
nent exhibits, hereto annexes, and prays to be here 
read and inserted, and taken as part and parcel hereof, 
a certain paper writing, or exhibit, marked No. 4, and 
allies and propoimds the same to be and contain a 
true and correct copy of the order made by the Lord 
Chancellor on Friday, the 18ih day of July, 1845, as in 
the next preceding article mentioned; that the contents 
of the said exhibit were and are true ; that all things 
were so had and done as therein contained ; and that 
Hannah Keningale Wilkinson, therein mentioned aa 
the petitioner suing by John Chrisp Gooday, her next 
friend, and Watts Wilkinson, therein also mentioned 
as her pretended husband, and Hannah Keningale Wil- 
kinson and Watts Wilkinson, her pretended husband, 
the parties in this cause, were and are the same persons, 
and not divers ; and this, &c. 

That all and singular the premises were and are true> Third, 
and so forth. 



422 



MATRIMONIAL CAUSES. 



Sentence. 

Sentence of In tihe name of God, amen. We the Right Ho- 

marriage by Aourable Stephen Lushington, Doctor of Laws, Vicar- 
reason of General of the Right Honourable and Right Reverend 

former mar- , , 

riage. Father in God, Chaiies James, by Divine permission 

Lord fiishop of London, and Official Principal of the 
Consistorial and Episeopal Court of London, lawfully 
constituted, righdy and duly proceeding, having heard, 
seen, and understood, and fully and maturdy discussed 
the merits and circumstances of a certain cauae of 
nullity of marriage, by reason of Hannah Keningale 
Wilkinson, spinster, being, at the time of the solem- 
nization, or rather profanation, of the said marriage a 
person of weak and imbecile, or unsound mind, and 
incapable of forming such a contract, and also by reason 
of the fraud and circumvention practised on her, the 
said Hannah Keningale Wilkinson, Gq[>inster, by Watts 
Wilkinson and others, upon Hie occasion cf the said 
pretended marriage, now depen<Mng in judgment bdbre 
us in the said court, im)moted and brought by Hannah 
Keningale Wilkinson, acting by the Reverend Henry 
Watts Wilkinson, of Sudbury, in the county of Suffolk, 
Clerk, the natural and lawful &ther, and one of the 
guardians of the person of the said Hannah K^iingale 
Wilkinson, spinster, lawfully appointed by the High 
Court of Chancery of Great Britain, the party agent 
and complainant, on the one part, against the said 
Watts Wilkinson, of the parish of Saint Mary, Isling- 
ton, in the county of Middlesex, and diocese of London, 
(falsely calling himself, and pretending to be, the lawful 
husband of the said Hannah Keningale Wilkinson,) 



NULLITY OF MARRIAGE BY INSANITY OR IMBECILITY. 423 

on the other part, and the parties aforesaid lawfully 
appearing before us in judgment by their proctors re-' 
spectively, and the proctor of the said Hannah Kenin«- 
gale Wilkinson^ spinster, (falsely alleged to be the wife 
of the said Watts Wilkinson,) acting by her guardian 
aforesaid, earnestly praying sentence to be given for, 
and justice to be done to, his party, and the proctor of 
the said Watts Wilkinson praying justice to be doncf 
to his party; and we, having carefully and diligentiy 
searched into and considered the whole proceeding 
had and done before us in the cause, and having ob- 
served all and singular the matters and things which 
by law in this behalf ought to be observed, have 
thought fit, and do thus think fit, to proceed to the 
giving our definitive sentence or final decree in the said 
cause in manner following, to wit : — ^Forasmuch as> by 
the actt enacted, deduced, alleged, exhibited, pro- 
pounded, proved, and confessed in the said cause, we 
have fi>imd, and it doth evidentiy appear unto us, that 
the proctor of the said Hannah Keningale Wilkinson, 
spinster^ (fidsdy allq;ed to be the wife of the said 
Watts Wilkinson,) acting by her guardian as aforesaid, 
hath, as to what is hereinafter to be pronounced by us, 
suffideady founded and proved his intention deduced 
in a certain Ubel and exhibits, and also in certain addi- 
ti(Hial artides to the said libel, (with an exhibit thereto,) 
given and exhilnted, and admitted on the part and 
behalf of the said Hannah Keningale Wilkinson, spin- 
ster, in the said cause, and now remaining in the 
registry of the said cause, (which said libel and exhi* 
bits, and additional articles and exhibit, we take and 
will to have taken as if here read and inserted,) for us 
to pronounce, as hereinafter is pronounced, and that' 



424 MATRIMONUL CAUSES. 

nothings at least effectual^ hath^ on the part and behalf 
of the said Watts Wilkinson, been excepted, deduced, 
alleged, exhibited, propounded, proved, or confessed in 
the said cause, which may or ought in any viae to pre- 
judice or weaken such intention : therefore we, Stephen 
Lushington, Doctor of Laws, the judge aforesaid, having 
heard counsel on both sides, do pronounce, decree, and 
declare that, on the 24th day of May, in the year of 
our Lord 1845, a pretended marriage was had and 
solemnia&ed, or rather profaned, at the parish church of 
Saint Dunstan, Stepney, in the county of Middlesex, 
according to the rites and ceremonies of the Church of 
England as by law established, between the said Watts 
Wilkinson and Hannah Keningale Wilkinson, spinster, 
(falsely alleged to be the wife of the said Watts Wil- 
kinson,) but that, at the time of the solemnisation, or 
rather profeination, of the said marriage, she, the said 
Hannah Keningale Wilkinson, spinster, (fiilsely alleged 
to be the wife of the said Watts Wilkinson,) was a 
person of weak and imbecile or unsound mind, and 
incapable of forming such a contract, and that fraud 
and circumvention were practised on the said Hannah 
Keningale Wilkinson, spinster, (falsely allq^ to be 
. the wife of the said Watts Wilkinson,) upon that occa- 
sion : therefore, and for the reasons above-mentioned, 
we do pronounce, decree, and declare, that the said 
pretended marriage, so had and solemnized, or rather 
profaned, between the said Watts Wilkinson and 
Hannah Keningale Wilkinson, spinster, (falsely alleged 
to be the wife of the said Watts Wilkinson,) was and 
is absolutely null and void to all intents and purposes 
whatsoever ; and we do pronounce, decree, and declare, 
that the said Hannah Keningale Wilkinson, spinster, 



NULLITY OF MARRIAGB UNDXR 4 GEO. IT. C. 76. 425 

(ftlsely allied to be the ^rafe of the said Watts Wil- 
kioBon^) was and is firee from all bond of marriage with 
the said Watts Wilkinson^ by this our definitiye sen- 
tence or final decree, which we read and promulge by 
these presents. 



NULLITY OF MARRIAGE UNDER 

4 GEO. IV. C. 76. 

Thk general celebration of marriages is regulated, in 
England^ by the 4 Geo. IV. c. 76, (entitled '^ An Act 
for amending the Laws respecting the Solemnization of 
Marriages in England/^) and the infraction or contra- 
vention of certain of its provisions carries with it the 
absolute nullity of the contract. 

The clause of the act which more particularly applies 
to the validity or invalidity of a marriage, is as follows, 
section 22 : — '^ If any persons shall knowingly and wil- 
fully intermarry in any other place than a church or such 
public chapel wherein banns may be lawfully published, 
unless by special license as aforesaid, or shall know- 
ingly and wilfully intermarry without due publication 
of banns, or license from a person or persons having 
authority to grant the same, first had and obtained, or 
shall knowingly and wilfully consent to or acquiesce 
in the solemnization of such marriage by any person 
not being in holy orders, the marriages of such persons 
shall be null and void to all intents and purposes 
whatsoever." 



426 MATRllfONIAL CAU8BS. 

It 18 my intention here to treat only of the proceed- 
ings taken to obtain a sentence dedaratory of nullity 
inter vivos; far, where a marriage b put in issue after 
the death of either or both of the parties^ the form is 
changed^ and the question assumes the form of an in- 
terest cause in the Court of Probate (a). 

The only suits which have yet^ as far as I am awarei 
been stAstained, under the clause before recited^ have 
had reference either to a fiedse or an undue publication 
of banns {b, to which I shall therefore confine myself. 

We have seen that the statute requires all marriages, 
except in the case of a license, to be performed by pro- 
clamation of banns, which is to designate the iadi- 
viduaL In the case of minors, this is done in order to 
awaken the vigilance of parents and guardians, and 
to give them an opportunity of protectii^ their 
rights (r). 

Where either of the parties, with the consent or con- 
nivance of the other, in order to effect a firand upon a 
third party, such as a parent or guardian, or otherwise 
to procure dandestinity, has supjunessed a true name, or 
added a fidse one, or altered or disguised the real cha- 
racter or status of either ij£ them, such an act will con- 
stitute an undue publication of banns, under the before- 
recited section, as that cannot be a public notification 
of an intended marriage, where the banns are uttered 
under a false name or description (<<•) 

The following will serve as forms to be used in tins 
suit: — 

(o) Wilson V. Brockley, Phill. (c) Wakefield v. Wakefield, 

B. 1, p. 133. Hagg. C. R. vol. 1, p. 401. 

(6) See Ewing v. Wheatley, (d) Tonrnte v. AUeiiy Ciut. 1, 

Hage. C. R. vol. 2, p. 180, as to pp. 38 and 48. (Arches and 

fraud in a license. Judicial Committee.) 



NULLITY OF MARRIAGE UNDBR 4 GEO. IV. C. 76. 427 



Citation^ 

Charles James^ by Divine penmsskm Bishop of Lon*- Citation for 
don, to all snd singular clerks and literate persons, marm^ 
whomsoever and wheresoever, in and throughout U?*^*' * .^ 

Oeo«4.c«7o* 

our whole diocese of London, greeting : 
We do hereby authorise, empower, and strictly en- 
join and cozmnand you, jointly and severally, perempto- 
rily to cite, or cause to be dted, Mary Ann Allen,^ 
widow, ci the parish of Saint Bride, Fleet Street, in 
the city and diocese of London, falsely calling herself 
Mary Ann Tongue, and pretending to be the wife of 
Edward Croxall Tongue, a minor, to appear perso- 
nally, or by her proctor duly constituted, before 
the Worshipful Stephen Lushington, Doctor of Laws, 
Vicar-General and Official Principal of our Consisto- 
rial and Episcopal Court of London, lawfully consti- 
tute^ lus sarrogate, or some other competent ju(]^ in 
this behalf, in the Commcm HaU of Doctors' Com- 
mons^ situate in the parish of Saint Benedict, near 
PaoPs Wburf, London, and place of judicature there, 
on the third day after she shall hare been served with 
these presents, if it be a general session, bye-day, or 
additiond court-day oi-owr said court, otherwise on the 
general session, bye-day, or adcBtional court-day of 
our said court, then next ensuing, at the hour of the 
sitting of the court, and there to abide, if occasion re- 
((mre, during its continuance, then and there to answer 
to Edward Tongue, of the parish of Aldridge, in the 
ootuity of Stafford, Esquire, the natural and lawful 
father, and as such the natural guardian of the said 
Edward Croxall Tongue, the minor aforesaid, in a cer- 



428 MATRIMONIAL CAUSES. 

tain cause of nullity of manriage, by reason of hb 
minority and the undue publication of banns ; and fur- 
ther^ to do and receive^ as unto law and justice shall 
appertain^ under pain of the law and contempt thereof, 
at the promotion of the said Edward Tongue, Esquire ; 
and what you shall do or cause to be done in the pre- 
mises, you shall duly certify our Ticar-genersl and 
official principal aforesaid^ his surrogate^ or some other 
competent judge in this behalf^ together with these 
presents. 

Dated at London, the fourth day of January, one 
thousand eight hundred and thirty-four, and in the sixth 
year of our translation. 

Libel. 
Libel of nul- In the name of God, amen. &c. 

Iity of mar- 
riage under That in and by an act of Parliament, passed in the 

ft 7A^' ^' fourth year of the reign of his late Majesty, King 
George the Fourth, intituled '^ An Act for amending 
the Laws respecting the Solemnization of Marriages in 
England, it was, amongst other things, enacted, ^'tbat 
firom and after the first day of November, one thousand 
eight himdied and twenty-three, all banns of matrimony 
shall be pubUshed in the manner and at the time therein 
specified ;'' and it is by the said act further enacted, in 
the words or to the tenor following, to wit : '^ it is hereby 
further enacted, that no parson, minister, yicar, or 
curate shall be obliged to publish the banns of matri- 
mony between any person whatsoever, unless the 
persons to be married shall, seven days at the least 
before the time required for the first publication of such 
banns, respectively deliver, or cause to be delivered, to 
such parson, minister, vicar, or curate, a notice in 



c. 76. 
First. 



NULLITY OF MARRIAGS UNDER 4 GEO. IV. C. 76. 429 

• 

writing, dated on the day on which the same shall be 
so dehvered, of their true Christian names and sur- 
names, and of the house or houses of their respective 
abodes, widdn such parish or chapehy as aforesaid, and 
of the time during which they have dwelt, inhabited, or 
lodged in such house or houses respectively/^ And it 
is by the said act further enacted, ^^if any persons shall 
knowingly and wilfully intermarry in any other place 
than a church, or such public chapel wherein banns may 
be lawfully published, unless by special license; or shall 
knowingly and wilfully intermarry without due publi- 
cation of banns or license, from a person or persons 
having authority to grant the same first had and ob- 
tained ; or shall knowingly and wilfully consent to, or 
acquiesce in, the solemnization of such marriage by any 
person not being in holy orders, the marriage of such 
persons shaU be null and void to all intents and pur- 
poses whatsoever,'' as in and by the said act of Parlia- 
ment, (to which the party proponent craves leave to 
rrfer, and doth allege and propound the same to be a 
public act,) doth appear ; and this was and is true, public, 
and notorious, and so much the said Mary Ann Allen, 
widow, falsely calling herself Tongue, and pretending 
to be the wife of the said Edward Croxall Tongue, the 
minor aforesaid^ doth know, or hath heard, and in her 
conscience believes, and hath confessed to be true, and 
the party proponent doth allege and propound every- 
thing in this and the subsequent articles of this libel 
contained jointiy and severally. 

That the said Edward Croxall Tongue, the minor Second. 
aforesaid, was and is the natural and lawful and eldest son 
of Edward Tongue, Esquire, a gentieman possessed of 



430 MATRIMONIAL CAUSES. 

considerable landed property on which he resides^ at 
Aldridge, in the county of Stafford, and of Sidney 
Tongue, his wife. That the said Edward Croxail 
Tongue was bom on or about the fourth day of the month 
of May, in the year of our Lord 1815, and was shortly 
afterwards baptized in the parish church of Aldridge 
aforesaid, on or about the fifteenth day of October, in 
the year 1815, by the names of " Edward Croxail," 
and an entry of such baptism was then made in die 
re^ster-book of baptism, kept in and for the said 
parish ; and this was anfl is true, public, and notorious, 
and the party proponent doth all^e and propound as 
before. 
Third. In pjirt supply of proof of the premises in the next 

preceding article mentioned, and to all intents and pnr- 
poses in the law whatsoeyer, the party proponent doth 
exhibit, hereto annex, and pray to be here read and 
inserted, taken as part and parcel Hereof, a certain paper 
writing, marked No. I, and doth allege and propound 
the same to be and contain a true and &ithful copy of 
the original entry of the baptism of the said Edward 
Croxail Tongue, now remaining in the register-book 
of baptisms, kept in and for the said parish of Ald- 
ridge: that the same hath been faithfully extracted 
from the said register-book of baptisms, and carefully 
collated with its original entry now remaining therein, 
and agrees therewith that all and singular the contents 
of the said exhibit were and are true, that all things 
were so had and done as are therein contained ; and 
that ^^ Edward Croxail Tongue, son of Edward and 
Sidney Tongue,^' therein mentioned, and Edward 
Croxail Tongue, a minor, hereinafter mentioned, son of 



NULUTY OF MARRIAGE UNDER 4 GEO. IV. C. 67. ^^^ 

•* 

Edward Tongue, Esquire, tlie party proceeding in thb 
cause, was and is one and the same person, and not 
divers; and this was and is true, and the party propo- 
nent doth allege and propound as before. 

That the said Mary Ann Allen, widow, falsely calling Fourth. 
herself Tongue, (fid, on the day of the month of 

,18 , being then Mary Ann Atchi- 

son, spinster, duly and lawfully intermarry with 

Allen, and that from and after such intermarriage, 
they, the said Allen and the said Mary Ann 

Allen, lived and cohabited together as lawful husband 
and wife, and for and as such he the said 
Allen and the said Mary Ann Allen were commonly 
acooimted, taken, and reputed to be by their relations, 
friends, and acquaintance. That the said 
Allen departed this life in the month of , 

18 , leaving the said Mary Ann Allen his lawful 

widow and relict; and this was and is true, public, and 
notorious, and the party proponent doth allege and pro* 
pound as before. 

That the said Edward Croxall Tongue, the minor Fif^h- 
^foresaid, was placed by his said father at school, under 
the care of William Cowan Atchison, at Edgbaston, 
near Birmingham, in the county of Warwick, between 
three and four years ago; and that in or about the 
month of September^ 1832, the said William Cowan 
Atchison removed with his school establishment to 
Keynsham^ in the county of Gloucester; and in the 
month of January, 1833, Randle Francis Tongue, the 
second son of the said Edward Tongue, was also 
placed under the said William Cowan Atchinson; that 
the said Mary Ann Allen, widow, is the sister of the 
William Cowan Atchinson, and acted as his ser- 



432 MATRIMONIAL CAUSES. 

vant and housekeeper^ and managed the affairs of his 
establishment at Edgbaston and at Keynsham afore- 
said^ and attended to his pupils therein : and the party 
proponent doth further allege and propound^ that the 
said Edward Croxall Tongue first became acquabted 
widi the said Mary Ann Allen^ widow, who is of the 
age of thirty-five years, or thereabouts, on his so as 
aforesaid becoming a pupil at Keynsham as aforesaid, 
and that he was at such time of the age of seventeen 
years ; and that he the said ESdward Croxall Tongue was 
induced, by the arts and persuasions of the said Mary 
Ann Allen, widow, to consent to be married to her as 
is hereinafter more particularly mentioned: That the 
said parties weU knowing and believing that such their 
intended marriage would be highly disj^easing to the 
aforesaid Edward Tongue, the natural and lawful &ther 
of the said Edward Croxall Tongue, then resident at 
Aldridge, in the county of Stafford aforesaid, it was, at 
the suggestion and instigation of the said Mary Ann 
Allen, widow, concerted and agreed between them, the 
said Ekiward Croxall Tongue and Mary Ann Allen^ 
widow, falsely called Tongue, that for the express pur- 
pose of effecting the same clandestinely, and without 
the knowledge of him the said Edward Tongue and 
others, the banns for their said intended marriage 
should be published in the names and imder the de- 
scriptions of Edward Tongue, bachelor, and Mary Ann 
Allen, spinster; and accordingly the said Edward 
Croxall Tongue, being then of the age of seventeen 
years and upwards, but under the age of eighteen years, 
did, with the privity and consent, and at the procurement 
and instigation of the said Mary Ann Allen, widow, 
and while so residing as a pupil with the said William 



NILLITY OF MARRIAGE UNDER 4 GEO. IV. C. 76. 433 

Cowan Atchison^ at Keynsham aforesaid, cause the 
banns of marriage to be published in the parish church 
of Saint Michael, in the city of Bristol, for three suo* 
cessiye Sundays, to wit, on Sunday, the 10th day of 
February, Sunday the 17<^ of February, and Sunday 
the 24th of February, between him the said Edward 
Crozall Tongue, bachelor, and her the said Mary Ann 
Allen, widow, described respectively therein as Edward 
Tongue^ bachelor, and Mary Ann Allen, spinster; and 
the party proponent doth expressly allege and pro* 
pound, that the said Edward Croxall Tongue was bap- 
tised by the name of Edward Croxall Tongue, and hath 
constantly and upon all occasions previously to the 
sud publication of banns, used, passed, and been 
known by the christian name of Croxall, and not at all 
by the name of Edward, which was entirely dormant 
and disused, and that as well before as after the said 
publication of banns the said Mary Ann Allen, widow, 
herself was constantly in the habit of addressing 
and speaking of him by the name of Croxall, and no 
other: and that the said Mary Ann Allen hath 
constantly, and on all occasions, been styled and known 
and hath passed as Mary Ann Allen, widow, save and 
except on the occasion of the said pretended publica- 
tion of banns, and of the pretended marriage hereinafter 
pleaded: and that the said name of Croxall was know- 
ingly and wilfully omitted, and the false description of 
spinster was knowingly and wilfully substituted for the 
true description of widow, by the said parties respec- 
tively, in the undue and illegal publication of the szdd 
banns for the purpose of deception and concealment, 
and expressly in order to effect a clandestine celebration 
of the said then intended marriage ; and this was and is 

F p 



434 MATRIMONIAL CAUSES. 

tnie^ public^ and notorious, and the party proponent 
doth allege and propound as before. 
Sixth. That in pursuance of the banns of marriage so unduly 

and illegally published as aforesaid, a pretended marriage 
was, on or about the 26th day of February, in the year 
1833, in fiict, illegally bad, and solemnized in the afore- 
said parish church of Saint Michael, in the city of 

Bristol, by the Reverend J B Jebb, a 

Priest or Minister in Holy Orders, or then officiating 
as such, between the said Edward Croxall Tongue, 
bachelor and Mary Ann Allen, widow, in the name of 
Edward Tongue only, and Mary Ann Allen, spinster, 
and by no other name or names, or description or de- 
scriptions, whatsoever ; and that an entry of such pre- 
tended marriage was made in the register-book of 
marriages kept in and for the said parish, for the said 
year 1833; and the party proponent doth further 
expressly allege and propound, that the said pretended 
marriage was then had and solemnized at the time and 
place before particularly set forth under the aforesaid 
pretended publication of banns, and without the con- 
sent or even knowledge of the said Edward Tongue, 
Esquire, or Sidney Tongue, his wife, the natural and 
lawful father and mother of the said Edward Croxall 
Tongue, the minor aforesaid, or without license firom 
any person or persons having authority to grant the 
same being previously obtained; and therefore, and by 
reason of the premises, such pretended marriage was 
and is absolutely null and void, to all intents and pur- 
poses in the law whatsoever ; and this was and is true, 
public, and notorious, and the party proponent doth 
allege and propound as before. 



KULLITT OF MARRIAGE UNDER 4 GEO. IV. C. 76. 435 

That in part supply of proof of the 'premises in the Seventh, 
fifth and next preceding artides mentioned, and to all 
other intents and purposes in the law whatsoever, the 
party proponent doth exhibit, hereto annex, and pray 
to be here read and inserted, and taken as part and par- 
ed hereof, two certain paper writings or exhibits, marked 
No. 2 and No. 3; and doth allege and propound the 
said paper writing or exhibit, marked No. 2, to be and 
contain a true copy of the entry made in the banns'- 
book, touching the said banns of matrimony so published 
in the said parish church; and the said paper writing or 
exhibit, No. 3, to be and contain a true copy of the on- 
gind entry of the said pretended marriage, in pursuance 
of the said pretended puUication of banns as men- 
tioned in the fifth and next preceding artides. That 
the said paper writings have been faithfully extracted 
from the re^ster-book of banns and marriages kept in 
and for the said parish of Saint Michad, in the city of 
Bristol, in the said year, and carefully collated with tlie 
originals now remaining therein, and found to agree 
therewith: that all and singular the contents of the 
said exhibits were and are true; that all things were 
so in &ct, but illegally had and done as therein con- 
tained; and that Edward Tongue and Mary Ann Allen, 
spinster, mentioned in the said entry of banns, and who 
were in fact married in pursuance of the said imdue 
publication of banns, and Edward Tongue and Mary 
Ann Allen, spinster, mentioned in the said entry of 
marriage, and Edward Croxall Tongue, son of Edward 
Tongue, the party promoting this cause, and Mary Ann 
Allen, widow, the party against whom this cause is pro- 
moted, were and are the same persons, and not divers ; 

PF 2 



433 MATRIMONIAL CAUSES. 

and this was and is true, public, and notorious, and the 
party proponent doth allege and propound as before. 

Eighth. That the name, " Edward Tongue,^' set and subscribed 

to the original entry of the pretended marriage, so in 
fact had and solemnized between the said Edward 
Croxall Tongue and the said Mary Ann Allen, now 
falsely calling herself Tongue, the parties in this cause, 
was and is of the hand-writing of the said Edward 
Croxall Tongue, and is so well known, or believed to 
be, by divers persons who are well acquainted with the 
manner and character of his hand-writing, and have 
carefully inspected such signature thereto; and that the 
name, " Mary Ann Allen/' also set and subscribed to 
the original entry, was and is of the hand-writing of the 
said Mary Ann Allen, now falsely calling herself 
Tongue, and is so well known and believed to be, by 
several persons who are well acquainted with the man- 
ner and character of her hand-vniting, and have care- 
fully inspected such signature thereto; and this was and 
is true, public, and notorious, and the party proponent 
doth allege and propound as before. 

Ninth. That on the 26th day of February, 1833, the said 

Mary Ann Allen, widow, proceeded, accompanied by 
the said Edward Croxall Tongue, to the city of Bristol, 
when and where the said pretended marriage took 
place, on the pretence of vrishing to make some pur- 
chases. That the said Edward Croxall Tongue having 
previously given notice, through Samuel Qiiinton, the 
sexton of the said parish, that the said pretended mar- 
riage was to be solemnized on such day, and requested 
him to attend and procure another witness; he the said 
Samuel Quinton and Sarah Hauies, vridow, did accord- 



NULLITY OF MARRIAGE UNDER 4 GEO. IV. C. 76. 4Sj 

ingly attend at, and were the only witnesses to^ such 
pretended marriage. That after such pretended mar- 
riage^ they^ the said Edward Croxall Tongue and Mary 
Ann Allen^ widow^ returned to Keynsham aforesaid^ 
and he the said Edward Croxall Tongue continued his 
usual course of education as before the said pretended 
marriage, and went home as usual for the Mid&ummer 
vacation, in the month of June, in the said year 1833^ 
with his said brother, and unaccompanied by the said 
Mary Ann Allen, to Aldridge aforesaid, without any 
suspicion of the said marriage having been excited in 
any of his relations or friends. That the said Edward 
Croxall Tongue returned to the school of the said Wil- 
liam Cowan Atchinson, who had, at the latter end of 
August or beginning of September, of the said year 
1833, removed to Ashly Place, in the city of Bristol, 
and continued his studies as before; and unaccompanied 
by the said Mary Ann Allen, again visited Aldridge 
aforesaid, at the vacation at Christmas, in the month of 
December, 1833; when the said Edward Tongue, 
Esquire, having been informed of an appearance of 
undue intimacy between his said son, Edward Croxall 
Tongue^ and the said Mary Ann Allen, widow, ques- 
tioned him thereon, and then first became informed 
that he, the said Edward Croxall Tongue, was married 
to her, the ssud Mary Ann Allen, widow. That from and 
after such discovery, the said Edward Croxall Tongue 
remuned at the house of the said Edward Tongue, 
Esquire, until he was sent abroad, where he has ever 
since remained, and has not had any interview or com- 
munication with the said Mary Ann Allen since quit- 
ting the city of Bristol, in the month of December, 
1833, as herehibefore pleaded; and tliis was and is true^ 



43S MATRIMONIAL CAUSES. 

pubEcy and notorions, and the party proponent doth 
allege and propound as before. 

Tenth. That the said Mary Ann Allen^ widows was and is of 

ihe parish of Saint Bride, in the dty of London and 
diocese of the same, and therefore, and by reason of the 
premises, was and is sabject to the jurisdiction of this 
court; and this was and is true, and the party propo- 
nent doth all^e and propound as before. 

Eleventh. That all and singular the premises were and are true, 

public, and notorious, and thereof was and is public 
voice, fiame, and report, of which l^al proof being 
made, the party proponent prays right and justice to 
be effectually done and administered to him and his 
party in the premises ; and that the said pretended mar- 
riage, however in &ct, had and solemnized between 
them the said Edward Croxall Tongue and Mary Ann 
Allen, widow, (falsely calling herself Tongue, and pre- 
tending to be the wife of the said Edward Croxall 
Tongue,) may be pronounced null and void, to all in- 
tents and purposes in the law whatsoever, pursuant and 
agreeably to tiie aforesaid Act of Parliament, passed in 
the fourth year of the reign of His late Majesty^ King 
George the Fourth, intituled '^ An Act for amending 
the Laws respecting the Solemnization of Marriages in 
England; *' which said Act of Parliament, at the time 
the aforesaid pretended mairiage was solemnized, was 
in full force and virtue ; and that otherwise right and 
justice may be effectually done and administered in the 
premises, by you, and your definitive sentence or final 
decree to be g^ven in this behalf. 



439 



TESTAMENTARY CAUSES. 



Thbbb are two modes in which fhe proceedings in a 
testamentary suit are generally commenced, viz., by 
caveat and decree. 

The first is always a compulsory step, taken by the 
opponents of a will against the executor or other person 
interested in sustaining it, while the latter may be 
either yoluntary or compulsory, on the part of such 
executor, according as the decree is issued by or against 
himself. 

I will first consider the method of proceeding by 
caveat, as the one most usually adopted in these cases. 

The party intending to oppose the will, Bnd put the 
executor to a solemn proof of its validity and genuine- 
ness, having of course a sufficiency of interest to entitle 
him to take this step, either as next of kin, or as inte- 
rested under another will, records, through his proctor, 
in the caveat-book kept for that purpose in the registry 
of the court, a caution against any grant of probate of 
the will in question being allowed to pass the seal, in 
the common or uncontested form, without previous 
notice being given to his proctor that such an applica- 
tion has been made. 

The caveat is very simple in form, and does not con- 
tain the name and description, or the specific interest. 



440 TESTAMENTARY CAUSES. 

of the caveator; the fictitious names^ ''John Thomas/' 
being substituted. It is always in the following tenns, 
viz.: — 



Caveat. 

Caveat. Let nothing be done in the goods of A. B.^ late of 

J in tlie county of y deceased^ 

unknown to C. D. proctor for John Thomas^ having 
interest. 

This bare entry puts an effectual stop on all pro- 
ceedings in regard to taking probate^ unless with the 
consent or knowledge of the person on whose behalf it 
has been entered. It stands in force for a period of 
six months^ at the expiration of which it must be 
renewed. 

This preliminary step having been taken by the in- 
tended opponent of the will^ the next proceeding neces- 
sarily emanates from the executor or other party who 
upholds the will. The latter having applied at the 
registry for a probate in common form^ and found his 
application barred by the caveat, is then compelled to 
prove his wUl^ in solemn form, per testes. To enable 
him to do so, his proctor toams the proctor of the 
adverse party, who is yet unknown, to appear on a cer- 
tain day, either in court, or before a surrogate in his 
chambers, (as may be most convenient,) and set forth 
his client's interest. 

This notice, which is technically called a warning, ]& 
usually as follows : — 



TESTAMENTARY CAUSES. 441 



Warning. 

In the Prerogative Court of Canterbury. Warning. 

Warn Mr. to the caveat entered by him 

in the goods of A. B.^ late of , deceased, to 

appear before a surrogate, in his chambers, (or before 
the Right Honourable the Judge, m the Common 
Han,) on Wednesday next, the seventh day of June 
instant, at twelve o'clock at noon, and set forth his 
client's interest. 

Addams will appear for E. F., the sole executor named 
in the true and origuial last will and testament of the 
said deceased, bearing date the day of , 

1840 ; will all^e him to have been duly sworn as usual, 
and will pray probate to pass the seal to his party. 

Doctors' Commons, 13th June, 1846. 

The warning, being of the nature of a dtation, is 
served by the apparitor, or officer of the court, on the 
other proctor, the original being left with him. 

On the day fixed for the appearance, both proctors, 
who have previously tvriiten to the caveat j t. e. have set 
forth their respective aveicments and prayers in the 
court-book, go before a surrogate, accompanied by the 
registrar, or appear in court, as the case may be, and 
submit to the usual assignations. If the will is 
opposed by a next of kin, the executor is assigned 
to answer to his interest, t. e. to admit or deny the 
fact of relationship, and consequentiy the tide of 
the individual to oppose; and both the proctors are 
also assigned to exhibit proxies from their respective 
parties. 



442 TESTAMflMTARY CAUSES. 

Both parties having now detennined on the course 
to be adopted^ furnish their respective proctors with 
proses or authorities to prosecute or defend the suit in 
their names. 

Having arrived at this stage^ I will recur to the other 
proceeding by decree, as, in all but the mere pre&mi- 
nary acts, the same method is pursued in both. 

The decree may issue at the instance either of the 
executor or of the next of kin, and also either before or 
after probate has been taken of the will which it is in- 
tended to dispute. 

I will begin with the decree at the suit of tiie execu- 
tor, before he has taken or applied for probate. This 
is always a voluntary act on his part. It is done 
where the executor, from the circumstances whidi 
have attended the execution of the will, apprehends liti- 
gation on the part of the next of kin, but does not 
choose to wait for it ; and it is also a proceeding very 
frequently adopted in those cases where minor or 
lunatic next of kin are excluded from any participation 
in the estate of the deceased by the provisions of the 
wilL In the latter instance it is a convenient course, 
and is excellently adapted to prevent future litigation, 
at a time, probably, when the executor or other persons 
interested in sustaining the will may, firom the deaths 
of witnesses and other casualties, be deprived of neces- 
sary and previously competent evidence. 

The decree with intimation is as follows : — 

Decree to see a WiU propounded. 

Decree to see William, by Divine Providence Archbishop of Canter- 
t)^"dS*It ^^^> Primate of England, and Metropolitan, to 



TESTAMENTARY CAUSES. 443 

aU and singQlar derks and literate persons^ whozn« the instance 
soever and wheresoever^ in and throughout our ^^^^fn^t 
whole province of Canterbury^ greeting : the next of 

Whereas it hath been alleged before the Worshipful ^' 
y Doctor of Laws, Surrogate of the Right 
Honourable Sir Herbert Jenner, Knight, also Doctor of 
Laws, Master^ Keeper, or Commissary of our Preroga- 
tive Court of Canterbury, lawfully constituted, on the 
part and behalf of Boyd Miller and James Dunlop, 
that Patrick Hart^ late of , in the county of 

, Esquire, deceased, (having, whilst living, 
and at the time of his death, goods^ chattels^ or credits, 
in divers dioceses or jurisdictions, within our said pro- 
vince, sufficient to found the jurisdiction of our said 
court,) died on the fifth day of July last, a widower, 
without child or parent, having first made and duly 
executed bis last will and testament in writing, bearing 
date the day of , m the year 

y and thereof appointed the said Boyd Miller 
and James Dunlop executors, and that he left him sur- 
riving, Thomas Hart and Jane Hart, spinster, his natu- 
ral and lawful brother and sister, and only next of kin^ 
the only persons who would have been entitled in dis- 
tribution to his personal estate and effects, in case he 
had died intestate : and whereas it was further allied 
that the said Boyd Miller and James Dimlop are about 
to propound the validity of the said will, in order to 
obtain the judgment of our said Prerogative Court 
thereon: and whereas the surrogate aforesaid, rightly 
and duly proceeding in the premises^ hath, at the peti- 
tion of the proctor of the said Boyd Miller and James 
Dunlop, decreed the said Thomas Hart and Jane Hart 
to be cited, intimated, and called to appear in judgment 



444 TESTAMENTARY CAUSES. 

on the day^ at the time and place, to die eflPect, and in 
manner and form hereinafter mentioned, justice so re- 
quiring: we do therefore hereby authorize, empower, 
and strictly enjoin and command you, jointly and seve- 
rally, peremptorily to cite or cause to be dted the said 
Thomas Hart and Jane Hart, spinster, by shewing to 
them these origmal presents, under seal, and by leaving 
with each of them a true copy hereof, to i^pear per- 
sonally, or by their proctors or proctor duly consti- 
tuted, before our master, keeper, or commissary 
aforesaid, his surrogate, or some other competent judge 
in this behalf, in the Common Hall of Doctors' Com- 
mons, situate in the parish of Saint Benedict, near 
Paulas Wharf, London, and place of judicature there, 
on the first session of Hilary Term, to wit, the 
day of next ensuing, and also on every 

other court-day, then and there to see and hear the said 
last will and testament of the said deceased pro- 
pounded and proved by witnesses in solemn form of 
law, and all and every the judicial acts, matters, 
and things needful and by law required to be done and 
expedited in and about the premises, until a definitive 
sentence in writing shall be read, signed, promulged, 
and given, or until a final interlocutory decree shall be 
made and interposed in the said cause or business, if 
they or either of them shall think it for their, his, or 
her interest so to do, and further to do and receive as 
unto law and justice shall appertain, under pain of the 
law and contempt thereof, at the promotion of the said 
Boyd Miller and James Dunlop; and moreover that 
you intimate, or cause it to be intimated, to the said 
Thomas Hart and Jane Hart, (and to whom we do also 
intimate by the tenor of these presents,) that if they, 



TESTAMENTARY CAUSES. 445 

he^ or she^ do or does not appear on the day^ at the 
time and plaee^ to the effect, and in manner and form, 
as hereinbefore is mentioned, or appearing, do or does 
not shew good and sufficient cause, concludent in law, 
to the contrary, our master, keeper, or commissary 
aforesaid, his surrogate, or some other competent judge 
b this behalf, doth intend to proceed, and will proceed, 
to see and hear the said last will and testament of the 
said deceased propounded and proved by witnesses in 
solemn form of law, and to do all and every the judicial 
acts, matters, and things needful and by law required to 
be done in and about the premises, and to read, sign, 
promulge, and give a definitive sentence in ^Tiling, 
or to make and interpose a final interlocutory decree in 
the said cause or business, the absence, or rather con- 
tumacy, of the said Thomas Hart and Jane Hart, so 
dted and intimated as aforesaid, in anywise notwith- 
standing ; and what you shall do or cause to be done in 
the premises you shall duly certify our master, keeper, 
or commissary aforesaid, his surrogate, or some other 
competent judge in this behalf, together with these 
presents. 

Given at London, under seal of our said Prerogative 
Court of Canterbury, the day of , 

in the year of our Lord , and in the 

year of our translation. 

(L,S.) Chas. Dynblby, 1 ^ 

T T f Deputy 

John Iggulden,> / ■' 

W. p. GOSTLINO, S ^^'*^- 



446 TESTAMENTARY CAUSES. 



Decree to see Substance of Will propounded. 

Decree to see William^ &C. 

Jdn jTo? °^ Whereas the worshipful, &c., hath, at the petition of 
pounded at the proctor of Martha Hum£rey, widow, alleging that 
of executors Joseph Humfrey, late of Upton, in the county of Berks, 
affainst next deceased, (having whilst living, &c.,) departed this life 
on the 21st day of November, 1642 ; that the said 
deceased whilst living, to wit, on a day happening in 
the month of November, in the year 1831, made and 
duly executed his last will and testament, in writing, in 
the presence of three credible persons, who attested and 
subscribed the same as witnesses of the due execution 
tiiereof, and that he, the said deceased, in and by his said 
will, gave and bequeatiied the whole of his estate and 
property to his brothers Thomas Humfrey, John 
Htmtifrey, and William Humfrey, and Job Lousley and 
Daniel Lousley in trust, to sell and dispose of the same 
when his youngest child should become of age, and to 
allow his wife, the said Martha Himifiey, the annual 
siun of £200 for and during her life, and to divide the 
residue of his said property amongst all his children ; 
the girls to have two-thirds as much as tiie boys; and 
that no executor or other legatee was named in the said 
will ; and further alleging, that after the execution of 
the said will, the said deceased did not make or execute 
any other will or testamentary disposition valid in law^ 
or in any way revoke or annul the same ; and further 
alleging, that since the death of the said deceased, the 
said will was incautiously and unadvisedly destroyed by 
the said Martha Humfrey, widow, and that no draft or 
copy of the same is now in existence; and further 



TESTAMENTARY CAUSES. 44? 

al]^;iiig, that the said deceased left him sorviving the 
said Martha Humfrey, widow, his lawful relict, and 
Hannah Humfirey, spinster, Nathaniel Humfrey, Philip 
Hmnfrey, Phoebe Hmnfrey, spinster, Grace Hiunfrey, 
spinster, and Mercy Humfrey, spinster, his natural and 
lawful and only children respectively, the only persons 
who woold have been entitled in distribution to his per* 
sonal estate and effects, in case he had died intestate, 
and that the said Hannah Hum£rey, Nathaniel Hum- 
frey, Philip Humfrey, and Phoebe Humfrey are now in 
their minority; to wit, the said Hannah Humfrey of 
the age of nineteen years and upwards, the said Na- 
thaniel Humfrey of the age of fourteen years and 
upwards, the said Philip Humfrey of the age of thirteen 
years and upwards, and the said Phoebe Humfrey of 
the age of nine years and upwards, but respectively 
under the age of twenty-one years ; and that the said 
Grace Humfrey and Mercy Humfrey are now in their 
infimcy ; to wit, the said Grace Humfrey of the age of 
four years and upwards, and the said Mercy Humfrey of 
the age of two years and upwards, but respectively 
under the age of seven years, (as in and by an affidavit, 
&c.) ; and lastiy alleging^ that the said Martha Hum- 
frey is desirous of propounding the contents or sub- 
stance or effect of the said last will and testament of the 
said deceased, as embodied or contained in the aforesaid 
affidavit : decreed the said Hannah Humfrey, spinster, 
Nathaniel Humfr^, Philip Humfrey, Phoebe Humfrey, 
spinster, Grace Humfrey, spinster, and Mercy Hum- 
frey, spinster, to be cited, intimated, and called to 
appear in judgment on the day, at the time and place, 
to the effect and in manner and form hereinafter 



448 TESTAMENTARY CAUSES. 

mentioned, (justice so requiring.) We do, there- 
fore, hereby authorize, &c., by shewing, &c., to 
appear lawfully, &c., on the first session of Mi- 
chaelmas Term, to wit, Tuesday, the 7th day of No- 
vember, 1843, and also on every other court-day, then 
and there to see and hear the contents or substance or 
effect of the said last will or testament of the ssdd 
deceased, as embodied or contained in the aforesaid 
affidavit propounded, and proved by witnesses in so- 
lemn form of law; and all and every other the 
judicial acts, matters, and things needful, and by law 
required to be done and expedited, in and about the pre- 
mises, until a definitive sentence shall be read, signed, 
promulged, and given, or a final decree shall be made 
and interposed in the premises, if they, any, or either of 
them shall think it for their interest so to do; and 
further to do, &c. And, moreover, that you intimate, 
&c., our master, keeper, or commissary aforesaid, &c., 
will proceed to hear the contents or substance or effect 
of the said last will and testament, as contained or em- 
bodied in the aforesaid affidavit, propounded, &c. ; and 
^ to do all and every other the judicial acts, matters, 
and things needful, and by law required to be done and 
expedited in and about the premises, and to read, sign, 
promulge, and give a definitive sentence in writing, or 
to make and interpose a final interlocutory order or 
decree therein, the absence, &c. 
3rd October, 1843^ &c. 



TESTAMENTARY CAUSES. 449 



Decree. 

William, &c. Decree, at 

Whereas the Worshipful William Calverley Curteis, ^f residuary 
Doctor of Laws and Surrogate of the Right Honourable legatees 

r m against exe- 

Sir John Nicholl, Knight, also Doctor of Laws, Master, cutors, to 

Keeper, or Commissary of our Prerogative Court of ^^f^ ^^^\\ 

Canterbury, lawfully constituted, rightly and duly pro- or shew 

ceeding at the petition of the proctor of Thomas and against 

Wargent, Eleanor Young, (wife of Henry Young,) and next of kin 

Catherine Newman, (wife of John Newman,) alleging cause, &c., 

that William PenneU, late of the parish of Yarkhill, in °"^ ^»° *^. 

' *^ ' srie proceed- 

the county of Hereford, Yeoman, departed this life on ings. 
&e 4th day of July, 1829, having whilst living and at 
the time of his death, &c. That the said deceased 
whilst living, to wit, on or about the 1 1th day of June, 
in the said year 1829, made and executed his last will 
and testament in writing, in the presence of three cre- 
dible persons, who attested and subscribed the same as 
witnesses to the due execution thereof, and that the 
said deceased, in his said will, named his nephew, 
Samuel Wargent, sole executor, Richard HoUings and 
Joseph Abell residuary legatees in trust, and the said 
Thomas Wargent, Eleanor Young, and Catherine New- 
man, heretofore Wargent, his nephew and nieces 
legatees, and also three of the residuary legatees. And 
Airiher alleging, that the paper writing marked A, an- 
nexed to a certain affidavit, duly made by the said 
Thomas Wargent, Eleanor Young, and Catherine 
Newman, contains a true and exact copy of the said 
original last will and testament of the said deceased, 
save as to the date thereof, together with the clause of 

o G 



450 TESTAMENTARY CAUSES. 

attestation and the signatures of the three subscribed 
witnesses. And further alleging, that since the death 
of the said deceased, his said true and original last will 
and testament hath not been forthcoming, and the same 
is falsely asserted to have been cancelled or destroyed 
by him, the said deceased. And lastly alle^g, that 
the said deceased died a bachelor, without parent, 
leaving behind him Mary Wargent, widow, EUizabeth 
Oammond, (wife of John Gammond,) and Catherine 
Hollings, (wife of Richard Rollings,) his natural and 
lawful sisters, only next of kin, and die only persons 
who would have been entitled in distribution to bis per- 
sonal estate and effects in case he had died intestate, (as 
in and by the aforesaid affidavit, with the said copy of 
the said will annexed, produced, and shewn to the said 
surrogate, and now remaining in the registry of otir 
said court, relation being thereunto had, will appear.) 
Hath decreed the said Samuel Waigent, Richard 
Hollings, Joseph Abell, Mary Waigent, Elizabeth 
Oammond, and Catherine Hollings to be cited, inti- 
mated, and called to appear, &C, on the first session of 
Hilary Term, to wit, &c., then and there to bring into 
and leave in the registry of our said court the said true 
and original last will and testament of the said deceased, 
if the same shall be in the possesion or under the con- 
trol of them, or any or either of them ; and the said 
Samuel Wargent, Richard Hollings, and Joseph AbeD, 
then and there, in case the said will shall be brought 
into the said registry, to accept pr refuse probate of the 
same or letters of administration, (with the said will 
annexed,) of all and singular the goods, chattels, and 
credits of the said deceased, otherwise to shew good 
and sufficient cause, concludent in law, why such letters 



TESTAMENTARY CAUSES. 451 

of administration should not be committed and granted 
to the said Thomas Wargent, Eleanor Young, and Ca- 
therine Newman, as three of the residuary l^atees 
named therein ; or in case the said original will shall 
not be brought into the said registry, to accept or refuse 
probate of the aforesaid copy thereof, or letters of ad- 
ministration, with the same annexed, of all and singular 
the goods, chattels, and credits of the said deceased, 
limited until the original will, or a more authentic copy 
thereof, shall be brought into and left in the registry of 
our said court, otherwise to shew good and sufficient 
cause, concludent in law, why letters of administration 
(with the said copy of the said will annexed,) under the 
limitations aforesaid, should not be committed and 
granted to the said Thomas Wargent, Eleanor Young, 
and Catherine Newman, three of the residuary legatees 
named in the said will, as aforesaid ; and further to do 
and receive, as unto law and justice shall appertain. 
And, moreoTcr, that you cite, or cause to be dted, the 
sidd Samuel Wargent, Richard Hollings, Joseph Abell, 
Mary Wargent, EliKabeth Oammond, and Catherine 
Hollings to appear on the day, at the time and place, 
and in manner aforesaid, and also on every other court- 
day, then and there to see and hear all and every the 
judicial acts, matters, and things needful, and by law 
required to be done and expedited, in and about the 
premises until a definitive sentence in writing shall be 
read, signed, promulged, and given ; or until a final in- 
teilocutory decree shall be made and interposed in the 
cause or business, if they, or either of them, shall think 
it for their interest so to do, at the promotion of the 
Thomas Wargent, &c« And you shall, moreover, 

G G 2 



452 TESTAMENTARY CAUSES. 

intimate^ &c. Our master^ &c., will proceed, &c., to 
read, &c., a definitive sentence, &c. ; and what, &c. 

Given at London, tliis 13th day of January, A.D. 
1831, &c. 

The other decree, to which I alluded, is resorted to 
after probate in common form has passed to the exe- 
cutor. It is a process, compulsory on such executor, 
to bring the probate into court, and prove the will in 
solemn form. It originates with the next of kin of the 
deceased, or with the executors or other persons inte- 
rested in another will. 

Decree. 

Decree, at William, by Divine Providence Archbishop of Canter- 
ofnextofkin bury. Primate of all England, and Metropolitan, 

against an to all and singular clerks and literate persons, 

executor to _ , 

bring in pro- whomsoever and wheresoever, in and throughout 

bate, &c. Q^jp whole province of Canterbury, greeting: 

Whereas the Worshipful A. B., Doctor of Laws, 
surrogate of the Right Honourable Sir Herbert Jenner 
E^night, Doctor of Laws, Master, Keeper, or Commis- 
sary of our Prerogative Court of Canterbury, lawfully 
constituted, rightly and duly proceeding, hath at the 
petition of the proctor of James Holmes, alleging that 
Richard Holmes, late of George's Place, Holloway, in 
the county of Middlesex, deceased, died on the l7th 
day of September, 1S36, a widower and intestate^ hav- 
ing whilst living, and at the time of his death, goods, 
chattels, and credits in diver dioceses and jurisdictions, 
sufficient to found the jurisdiction of our said Preroga- 



TESTAMENTARY CAX7SES. 453 

tive Court, and that he, the said James Hohnes, is one 
of the natural and lawful children of the said deceased; 
and further alleging that notwithstanding the pre- 
mises^ probate of a pretended will of the said deceased, 
bearing date on or about the 23rd day of June, 1836, 
passed^ granted under the seal of our said Prerogative 
Court to Martha Pretty, wife of Francis Pretty, the 
sister of the said deceased, the sole executrix, as pre- 
tended therein named, (as by the acts and records of 
our said Prerogative Court, reference being thereunto 
had, will more fully appear,) decreed the said Martha 
Pretty, (wife of Francis Pretty,) to be cited and called 
to appear in judgment, on the day and the time and 
place^ to the effect, and in manner and form hereinafter 
mentioned, justice so requiring. We do, therefore, 
hereby authorize, empower, and strict enjoin and com- 
mand you, joinUy and severally, peremptorily to cite, or 
cause to be cited, the said Martha Pretty, by shewing to 
her this original, under seal, and leaving with her a 
true copy hereof, to appear personally, or by her 
proctor duly constituted, before our master, keeper, or 
commissary aforesaid, his surrogate or some other com- 
petent judge in this behalf, in the Common Hall of 
Doctors' Common, situate in the parish of Saint Bene- 
dict, near PauFs Wharf, London, and place of judica- 
ture, there, on the sixth day after service of these 
presents, if it be a general session, bye-day, caveat-day, 
or additional court-day of our said court, otherwise on 
the general session, bye-day, caveat-day, or additional 
court-day then next ensuing, at the hour of ten in the 
forenoon, and there to abide, if occasion require, during 
the sitting of the court, then and there to bring into 
and leave in the registry of our said court, the pro- 



454 TESTAMENTARY CAUSES. 

bate of the said pretended will^ so granted to her 
aforesaid, and prove the said pretended will, in solemn 
form of law, by good and sufficient witnesses, other- 
wise to shew good and sufficient cause, if she hath or 
knows any, why the said pretended will should not be 
pronounced to be ntdl and inyalid, and why the said 
probate thereof should not be revoked and declared 
null and void to all intents and purposes in the law 
whatsoever, as having been unduly obtained, and the 
said deceased pronounced to have died intestate ; and 
why letters of administration of all and singular the 
goods, chattels, and credits of the said deseased, as 
dying a widower and intestate, should not be committed 
and granted to the said James Holmes, as one of the 
natural and lawful children of the said deceased, and 
also by virtue of her corporal oath to exhibit a true and 
perfect inventory of all and singular the goods, chat- 
tels, and credits of the said deceased, which since his 
death have come to the hands, possession, or know- 
ledge of her, the said Martha Pretty, and further to do 
and receive as unto law and justice shall appertain, un- 
der pain of the law and contempt thereof, at the pro- 
motion of the said James Holmes; and what you shall 
do, or cause to be done in the premises you shall duly 
certify our master, keeper, or conmiissary aforesaid, his 
surrogate, or some other competent judge in this behalf, 
together with these presents. 

Dated at London, this day of f 

in the year of our Lord 18 , and in the 
year of our translation. 



TESTAMENTARY CAUSES. 



455 



Decree. 

William^ by Divine Providence, Archbishop of Canter- Decree, at 
bury. Primate of all England, and Metropolitan, to of next of 
all and singular derks and literate persons, whom* ^^i against 
soever and wheresoever, in and throughout our bring in 
whole province of Canterbury, greeting: probate, &c. 

Whereas the Worsiiipful Joseph PhiUimore, Doctor of 
Laws, and Surrogate of the Right Honourable Sir Her- 
bert Jenner Fust, Knight, Doctor of Laws, Master, 
Keeper, or Commissary of our Prerogative Court of 
Canterbury, lawfully constituted, rightly and duly pro* 
oeedrng^ hath, at the petition of the proctor of 
Catherine Mary Tavener, (wife of Henry Robert Tave- 
ner,) alleging that John Stracey, late of Balsham, in the 
coimty of Cambridge, Oentieman, deceased, (having 
whilst living, and at the time of his death, goods, chat- 
tels, and credits, in divers dioceses, or peculiar juris- 
diction, sufficient to found the jurisdiction of our said 
Prerogative Court of Canterbury,) departed this life on 
or about the 31st day of July, one thousand eight hun- 
dred and thirty-nine, a bachelor, witiiout parent, brother, 
sister, unde, aunt, nephew, niece, or cousin german, hav- 
ing as pretended, made and executed his last will and tes- 
tament in writing, bearing date the twenty-ninth day of 
May, one thousand eight himdred and thirty-nine, and 
thereof appointed William Jackson, Lyon Falkoner, (in 
the will written Falkner,) and Joseph Tredgett, execu- 
tors and universal legatees, who, on or about the 
fifteenth day of August, one thousand eight hundred 
and thirty-nine, did unduly obtain probate of the said 
pretended will to be granted to them by the authority 



456 TESTAMENTARY CAUSES. 

and under the seal of our said court, (as by the acts 
and records thereof, reference being thereto had will 
appear,) and lastly alleging that the said Katiherine 
Mary Tavenor is the lawful cousin german, once remo- 
vedy and next of Idn of the said deceased^ decreed the 
said William Jackson^ Lyon Falkoner^ and Joseph 
Tredgett to be cited and called to appear in judgment 
on the day, at the time and place, and to the effect and 
in manner and form hereinafter mentioned^ (justice so 
requiring.) We do therefore hereby authorize, em- 
power, and strictly enjoin and command you^ jointly and 
severally, peremptorily to cite or cause to be cited, the 
said William Jackson, Lyon Falkoner, and Joseph 
Tredgett, to appear before our master, keeper, or com- 
missary aforesaid, his surrogate, or other competent 
judge in this behalf, in the Common Hall of Doctors' 
Commons, situate in the parish of Saint Benedict, near 
PauPs Wharf, London^ and place of judicature there, 
personally or by his or their proctor or proctors duly 
constituted, on the sixth day after they shall have been 
served with these presents, if it be a general session, 
bye-day, caveat-day, or additional court-day, of our 
said Prerogative Court, otherwise on the general ses- 
sion, bye-day, caveat-day, or additional court-day of our 
said courts then next following, at the hour of ten in the 
forenoon, and there to abide, if occasion require, during 
the sitting of the court, then and there to bring into 
and leave in the registry of our said court, the probate 
of the said pretended last will and testament of the 
said deceased, heretofore granted and committed to 
them as aforesaid, and to prove the same in solemn 
form of law, by good and sufficient witnesses, if they or 
either of them should think it their interest so to do, or 



TESTAMENTARY CAUSES. 437 

to shew cause if they have or know any, why the said 
probate should not be revoked and declared nuU and 
void, and the said pretended will pronounced null and 
invalid to all intents and purposes in the. law whatso- 
ever ; and why letters of administration of all and sin- 
gular the goods, chattels, and credits of the said 
deceased, as having died intestate, should not be com- 
mitted and granted to the said Katherine Mary Tave- 
ner, and further to do and receive as unto law and 
justice shall appertain, under pain of the law and con- 
tempt thereof, at the promotion of the said Katherine 
Mary Tavener. And what you shall do, or cause to be 
done in the premises, you shall duly certify our master, 
keeper, or commissary aforesaid, his surrogate, or some 
other competent judge on this hehalf, together with 
these presents. 

Dated at London, the fifth day of April, in the year 
of our Lord one thousand eight hundred and forty- 
three, and in the fifteenth year of our translation. 

Decree. 

William, by Divine Providence Archbishop of Canter- Decree 
bury. Primate of all England, and Metropolitan, ^S "4 "^^ 
to all and sins^ar clerks and literate persons, bring inpw)- 

bate &c. at 

whomsoever and wheresoever, in and throughout the instauce 
our whole province of Canterbury, greeting : ®^^® execsu- 

Whereas it hath been alleged before the Worshipful other will 
, Doctor of Laws, and Surrogate of the 
Right Honourable Sir Herbert Jenner, Knight, Doctor 
of Laws, Master, Keeper, or Commissary of our Prero- 
gative Court of Canterbury, lawfully constituted, by 
and on the part and behalf of William Jones, -that 



458 TESTAMENTARY CAUSES. 

Thomas Davis^ late of Rochester, m the county of 
Kent^ Esquire, deceased, departed this life on or aboat 
the second day of August, 1832, having, whilst living, 
and at the time of his death, goods, chattels, and credits 
in divers dioceses or peculiar jurisdictions, sufficient to 
found the jurisdiction of our Prerogative Court of Can- 
terbury, and having made and duly executed his last 
will and testament in writing, bearing date the 15th 
day of May, in the year 1830, and thereof appointed 
the said William Jones sole executor: that, notwith- 
standing the premises, a probate of a pretended will of 
the said deceased, bearing date the 21st day of July, 
1832, was, on the 22nd day of August, in the said year 
1832, granted, under seal of our said Prerogative Courts 
to Mary Davis, spinster, the sister of the said deceased, 
and John Evans, the executors, as pretended, named in 
the said pretended will: and whereas the said surro- 
gate, rightly and duly proceeding in the premises, did, 
at the petition of the proctor of the said William Jones, 
decree the said Mary Davis, spinster, and John Evans 
to be cited and called to appear in judgment on the 
day and at the time and place, to the effect, and in 
manner and form following, justice so requiring : we do 
therefore hereby authorize, empower, and strictly en- 
join and command you, jointly and severally, peremp- 
torily to cite, or cause to be cited, the said Mary Davis 
and John Evans, by shewing to them, and each of 
them, these presents- under seal, and leaving with them, 
and each of them, a true copy hereof, to appear per- 
sonally, or by their proctor or proctors dtdy consti- 
tuted, before our master, keeper, or commissary 
aforesaid, his surrogate, or some other competent judge 
in this behalf, in the Common Hall of Doctors* Com- 



TESTAMENTART CAUSES. 459 

mons^ situate in the parish of Saint Benedict, near 
P^uFs Wharf^ London, and place of judicature there, 
on the sixth day after service of these presents, if it be 
a general session, bye-day, caveat^ay, or additional 
court-day of our said courts otherwise on the general 
session, bye-day^ caveat-day, or additional court-day of 
our said court then next ensuing, at the hour of ten 
o'clock in the forenoon, and there to abide, if occasion 
require, during the sitting of the court, then and there 
to bring into and leave in the registry of our said court 
the said probate of the said pretended will of the said 
deceased, bearing date the 21st day of July> 1832, 
granted to them as aforesaid^ or shew cause, if they 
hare or know any, why the said probate should not be 
revoked and declared null and void, and the said pre- 
tended will pronounced null and invalid to all intents 
and purposes in the law whatsoever ; and probate of the 
aforesaid true and original last will and testament of 
the said deceased, bearing date the 15th day of May, 
1830, be committed and granted to the said William 
Jones, the sole executor therein named as aforesaid, 
and further to do and receive as unto law and justice 
shall appertain, under pain of the law and contempt 
thereof at the promotion of the said William Jones, 
the executor aforesaid ; and what you shall do or cause 
to be done in the premises, you shall duly certify our 
master, keeper, or commissary aforesaid, his surrogate, 
or some other competent judge in this behalf. 

Dated at London, the day of ^ 

in the year of our Lord 18 , and in the 
year of our translation. 



460 TESTAMENTARY CAUSBS^ 



Decree. 

Decree to William, by Divine Providence Archbishop of Canter- 
Wng in let- hMTjfj Primate of all England, and Metropolitan, 

nistration to all and singular clerks and literate persons, 

to^ntery *' whomsoever and wheresoever, in and throughout 

paper an- our whole province of Canterbury, greeting: 

Bhew^cause Whereas the Worshipful Jesse Addams, Doctor of 
why probate La^g^ and Surrogate of the Right Honourable Sir 
another tes- .Herbert Jenner, Knight, Doctor of Laws, Master, 
tamentwy Keeper, or Commissary of our Prerogative Court of 
not be granted Canterbury, lawfully constituted, rightly and duly pro- 
torf thweki"' ceeding, hath, at the petition of the proctor of Charles 
named. Henfrey, alleging that Henry Henfirey, formerly of 

Fotmdling Terrace, Gray's Inn Road, in the county of 
Middlesex, but lately of Havre, in France, Gentleman, 
deceased, (having, whilst living, and at the time of his 
death, goods, chattels, and credits in divers dioceses or 
jurisdictions within the province of Canterbury, suffi- 
cient to found the jurisdiction of our said Prerogative 
Court,) departed this life on the twenty-seventh day of 
February, one thousand eight hundred and thirty-nine, 
having, whilst living, duly made and executed his last 
will and testament in writing, the same being contained 
in two certain testamentary paper writings, bearing date 
respectively, the fourteenth day of July, one thousand 
eight hundred and thirty-eight, and the twenty-sixth 
day of February, one thousand eight hundred and 
thirty-nine, and thereof appointed Charles Henfirey, his 
said party, and Charles Marston Stretton, executors; 
and further alleging that, notwithstanding the premises, 
Mary Ann Henfrey, widow, the relict of the said de- 



TESTAMENTARY CAUSES. '"""" "^'"^ 461 

eeased, on or about the eighth day of November^ one 
thousand eight hundred and thirty-nine^ unduly applied 
for and obtained letters of administration^ (with the 
latter of the said testamentary paper writings only, to 
wit, that bearing date the twenty-sixth day of February, 
one thousand eight hundred and thirty-nine, annexed,) 
to be committed and granted to her by the authority of 
our said Prerogative Court; decreed the said Mary 
Ann Henfrey, widow, to be cited and called to appear 
in judgment on the day, at the time and place, in the 
manner, and to the effect hereinafter mentioned, justice 
so requiring. We do therefore hereby authorize, em- 
power, and strictly enjoin and command you, jointly 
&nd severally, peremptorily to cite, or cause to be cited, 
the said Mary Ann Henfrey, widow, by shewing to her 
this original, under seal, and by leaving with her a true 
copy hereof, to appear personally, or by her proctor 
duly constituted, before our master, keeper, or commis- 
sary aforesdd, his surrogate, or some other competent 
jndge in this behalf, in the Common Hall of Doctors' 
Commons, situate in the parish of Saint Benedict, near 
Paul's Wharf, London, and place of judicature there, 
on the sixth day after she shall have been served here- 
with, if it be a general session, bye-day, caveat>-day, or 
^ditional court-day of our said Prerogative Court, 
otherwise on the general session, bye-day, caveat-day, 
or additional court-day of our said court then next 
cosoing, at the hour of ten in the forenoon, and there 
to abide, if occasion require, during the sitting of ihe 
said court, then and there to bring into and leave in the 
T^try of our said court the letters of administration 
(with the aforesaid testamentary paper writing, bearing 
date the twenty-sixth day of February, one thousand 



462 TESTAMENTARY CAUSES. 

eight hundred and thirty-nine annexed,) so oommitted 
and granted to her by the authority of our said court, on 
or about the eighth day of the month of November last, 
as aforesaid, and shew cause why the same should not be 
revoked and declared null and void to all intents and 
purposes in the law, and why probate of the said two 
testamentary paper writings, bearing date respectively 
as aforesaid, the fourteenth day of July, one thousand 
eight hundred and thirty-eight, and the twenty-sixth 
day of February, one thousand eight hundred and thirty- 
nine, as together containing the last will and testament 
of the said deceased, should not be committed and 
granted to Charles Henfrey and Charles Marston Stret- 
ton, tlie executors therein named. And further to do 
and receive as unto law and justice shall appertain; 
under pain of the law and contempt thereof at the pro* 
motion of Charles Henfrey, one of the executors afore- 
said. And what you shall do or cause to be done in 
the premises, you shall duly certify our master, keeper, 
or commissary aforesaid, his surrogate, or some other 
competent judge in this behalf, together with these 
presents. 

Dated at London, this twentieth day of February, 
one thousand eight hundred and , in the 

twelfth year of our translation. 

An analogous process is that which issues at the soit 
of an executor, or party interested under a will, against 
the administrator to bring in his letters of administra- 
tion, and shew cause why they should not be revoked 
and probate granted of the wilL 

There is another process, issuing at the instance of 
the legatees of a codicil, against an executor, who> in 



TESTAMENTARY CAUSES. 463 

taking probate of his testator's will, has declined to 
include such codicil. The decree in this case calls upon 
the executor to take probate of it, in addition to the 
inll, and is as follows ; viz. :-— 

Decree, 

William^ by Divine Providence Archbishop of Canter- Decree 
bury. Primate of all England, and Metropolitan, ^^utor ^ 
to all and singular clerks and literate persons, take probate 
whomsoever and wheresoever, in and throughout at the in- ' 
our whole province of Canterbury, greeting : f*"*^ ^^* 

Whereas the Worshipful Jesse Addams, Doctor of named 
Laws, Surrogate of the Right Honourable Sir Herbert ^^^"^ 
Jenner, Knight, Doctor of Laws, Master, Keeper, or 
Commissary of our Prerogative Court of Canterbury, 
lawfully constituted, rightly and duly proceeding, hath, 
at the petition of the proctor of John Jones, allying 
that Thomas Evans, late of Homsey, in the county of 
Middlesex, deceased, departed this life on the 7th day 
of June, in the year 1839, having whilst living, and at 
the time of his death, goods, chattels, or credits in 
divers dioceses or peculiar jurisdictions, within our pro- 
vince of Canterbury, sufficient to found the jurisdiction 
of our said court, and having, whilst of sound mind, 
memory, and understanding, duly made and executed 
his last will and testament in writing, bearing date the 
15th day of October, 1830, and therein nominated and 
appointed Henry Davis, Esquire, sole executor, who, 
on the twenty-sevendi day of the said month of Oc^ 
tober, duly proved the said will in our said court, (as in 
and by the acts and records of our said court, reference 
being thereunto had will appear;) and further aUeging, 



464 TESTAMENTARY CAUSES, 

that the said testator^ also whilst of sound mind, 
memory^ and understanding, to wit, on the 6th day of 
July, 1838, duly made and executed a codicil to bis 
said will in the words following, to wit : ^' I do hereby, 
&c. &c.;'^ and which said codicil has been exhibited 
and brought into, and left in the registry of our said 
Prerogative Court of Canterbury ; and further alleging, 
that the said Henry Davis hath declined and refused to 
take upon him the probate and execution of the said 
codicil: hath decreed the said Henry Davis to be 
cited and called into judgment to the effect and in 
manner and form hereinafter mentioned, justice so re- 
quiring. We do, therefore, hereby authorize, empower, 
and strictly enjoin and command you, jointly and 
severally, peremptorily to cite, or cause to be cited, the 
said Henry Davis, by shewing to him these original 
presents under seal, and by leaving with him a true 
copy hereof, to appear personally, or by his proctor 
lawfully constituted, before our master, keeper, or com- 
missary aforesaid, his surrogate, or some other com- 
petent judge in this behalf, in the Common Hall of 
Doctors' Commons, "situate in the parish of Saint 
Benedict, near Paul's Wharf, London, and place of 
judicature there, on the sixth day after service of these 
presents, if it be a general session, bye-day, caveat-day, 
or additional court-day of our said Prerogative Court, 
otherwise on the general session, bye-day, caveat-day, 
or additional court-day, then next ensuing, at the hour 
of ten in the forenoon of the same day, and there to 
abide, if occasion require, during the sitting of our 
said court, then and there to take upon himself the 
probate and execution of the said codicil to the said 
will of the said deceased, or shew good and sufficient 



TESTAMENTARY CAUSES. 465 

cause, concludent in law, to the contrary. And fiuiihtf 
to do and receive as unto law and justice shall apper- 
tain, under pain of the law and contempt thereof, at 
the promotion of the said John Jones ; and what you 
shall do or cause to be done in the premises, you shall 
duly certify our master, keeper, or commissary afore- 
said, his surrogate, or any other competent judge in 
this behalf, together with these presents. 

Dated at LQndon, this day of » ii^ the 

year of our Lord , and in the year of our 

translation. 

The decree having been "duly served is returnable 
into court on the general session, bye-day, caveat-day, 
or additional court-day, immediately succeeding the 
time therein mentioned. But to entitle the promoter's 
proctor to do this act on his behalf, the former must 
execute a proxy of nomination in favour of the other, 
authorizing him to conduct the suit, in his name, as his 
l^;al representative. This instrument is required to 
secure the adverse party, and to protect the proctor (a). 

The proxy of a promoter who has extracted the 
decree first given, viz., of an executor who seeks to 
propound a will of his own accord agunst the next of 
kin of a testator, is as follows : — 

Proxy of Executor, propounding Will. 

Whereas a decree hath issued under seal of the Pre- Proxy of ex« 
rogative Court of Canterbury, at the instance of me, pn>ij[ind 
the undersigned Boyd Miller, the sole executor named ^ ^"^ 

(a) Prankard v. Deaele, Hagg. R. 1, p. 186. 

n H 



4G6 TESTAMENTARY CAUSES. 

in the trae and original last will and testament of 
Patrick Hart, late of , in the county 

of , Esquire, deceased, bearing date 

the day of , in the year , calling 

on Thomas Hart and Jane Hart, spinster, the natural 
and lawful brother and sister, and only next of kin, and 
the only persons who would have been entitled in the 
distribution of the personal estate and eflFects of the 
said deceased, in case he had died intestate, to see and 
hear all and every the judicial acts, matters, and things 
needful and by law required to be done and expedited 
in and about the said will until a definitive sentence in 
writing should be read, signed, promulged, and given, 
or until a final interlocutory decree should be made and 
interposed, concerning the same. And whereas the 
said decree hath been duly and personally served on 
the said Thomas Hart and Jane Hart respectively; 
now know all men by these presents that I, the said 
Boyd Miller, for divers good causes and considerations 
me thereunto especially moving, have nominated, con- 
stituted, and appointed Felix Slade, Notary Public, 
one of the procurators-general of the Arches Court of 
Canterbury, to be my true and lawful proctor, for me 
and in my name to appear before the Right Honourable 
Sir Herbert Jenner, Knight, Doctor of Laws, Master, 
Keeper, or Conunissary of the Prerogative Court of 
Canterbury, lawfully constituted, his surrogate, or some 
other competent judge in this behalf, and exhibit this, my 
spedal proxy, and by virtue thereof to return the said 
decree into court, and in my name, and on my part and 
behalf, to propound the said will, bearing date as afore- 
said, and take such further steps as shall be necessary 
towards procuring a definitive sentence or final decree 



TESTAMENTARY CAUSES. 46/ 

to be given and promolged, or interposed and made, for 
and in favour of the force and validity of the said will, 
and probate thereof to be granted to me as such exe- 
cutor as aforesaid, under seal of the said court, and 
generally to do, perform, and execute all such other 
acts, matters, and things as shall be requisite and neces- 
sary to be done for me and in my name herein ; and to 
abide for me in judgment until a definitive sentence or 
final decree shall be given and promulged, or mterposed 
and made, in the premises; with full power to the 
said Felix Slade, my proctor aforesaid, one or more 
other proctor or proctors, or other fit and competent 
person or persons, to make, name, substitute, and ap- 
point, and the same to revoke; hereby ratifying, allowing, 
and confirming all and whatsoever my said proctor, or 
his substitute or substitutes, shall lawfully do or cause 
to be done for me and in my name, in and about the 
premises. In witness whereof I have hereunto set my 
hand and seal this day of , in the 

year 

Boyd Miller. (LS.) 
Sealed and delivered in the presence of us — 

A. B. of 

C, D- of 

The proxy given by the next of kin, on the adverse 
side, authorizing an appearance and opposition of tiie 
will, is as follows : — 



Proxy of next of Kin, opposing Will. 

Whereas a decree, &c. (as in the former proxy.) Proxy of 

Now know all men, by these presents, that I, the said ^ oppoa© 

n H 2 wiU. 



468 TESTAMENTARY CAUSES. 

Thomas Hart, for divers good causes, &c., have nomi- 
nated &c., Richard Addams, junior, one of the pro- 
curators general exercent in the Arches Court of 
Canterbury, to be my lawful proctor, for me, and in 
my name to appear before the Right Honourable Sir 
Herbert Jenner, Knight, &c., and exhibit this my spe^ 
cial proxy, and by virtue thereof to give an appearance 
to the said decree in my name, and on my behalf, and 
in case the said pretended will» bearing date as aforesaid, 
shall be propounded, then to oppose the same, and 
oblige the said Boyd Miller to prove the said willy in 
solemn form of law, by good and sufficient witnesses, 
and to take such furtlier steps as shall be necessary on 
my part and behalf towards procuring a definitive sen- 
tence or final decree, to be given and promulged, or 
interposed and made against the force and validity of 
the said pretended will, and the said deceased to be 
pronounced to have died intestate, and a widower with- 
out child or parent, and also to pray and procure letters 
of administration of all and singular the goods, chat? 
tels, and credits of the said deceased, as so dying intes- 
tate, to be committed and granted under seal of the 
said Prerogative Court, to me, the said Thomas Hart, 
the natural and lawful brother, and one of the next of 
kin of the said deceased; and generally, &c. &c. 

The proxy of the promoter, or next of kin, who has 
taken out a decree calling in a probate granted to an 
executor in common form, is as follows: — 

Proxy qf next qf Kin calling in Probate. 

rfS^IuS ^^®'^®** * decree, &c. Now know all men, &a, to 
in probate, return the said decree into court, and procure an ap- 



TESTAMSNTARY CAUSES. ^^^ 

pearanoe to be given thereto^ by or on the part of the • 
said Martha Pretty, wife of Francis Pretty, the pre- 
tended executrix as aforesaid, and the said probate of 
the said pretended will, bearing date as aforesaid, to be 
brought into and left in the registry of the said court, 
and in case the said pretended will shall be propounded, 
then to oblige her the said Martha Pretty to prove the 
same in solemn form of law, by good and sufficient wit- 
nesses, and to take such further steps as shall be neces- 
sary on my part and behalf towards procuring a 
definitive sentence, or final decree to be given and 
promulged, or interposed and made against the force 
and validity of the said pretended will; and also to pray 
and procure the said probate thereof to be revoked and 
declared null and void, to all intents and purposes in 
the law whatsoever, and letters of administration of all 
and singular the goods, chattels, and credits of the said 
deceased, as dying a widower, without child or parent, 
and intestate, to be committed and granted to me as the 
natural and lawful brotherand oneof the next of kin of the 
said deceased, and also an inventory to be exhibited by 
her, upon and by virtue of her corporal oath, of all and 
singular the goods, chattels, and credits of the said de* 
ceased, which at any time since his death have come to 
the hands, ix>ssession, or knowledge of her, the said 
Martha Pretty; and generally, &c. &c. 

The proxy of the defendant, or party cited, i. e. the 
executor, is as follows: — 

Proxy of Executor t bringing in Probate and 

propounding Will. 

Whereas a decree, &c« Now know aU men, &c., for Proxy of 
me, and in my name to appear to the said decree, and in ^^^^ 



470 TESTAMENTARY CAUSES. 

bring in pro- obedience thereto to exhibit, bring into, and lesve in 
propound tbe registry of the said Prerogative Court of Canter- 
^^' hxxry, the said probate so granted to me as aforesaid, 

and to propound the said will of the said deceased, 
bearing date as aforesaid, and in case the same is 
opposed, then to prove the same in solemn form of law, 
by good and sufficient witnesses, and take such further 
steps as shall be necessary towards procuring a defini* 
tive sentence or final decree to be given and promulged, 
or made and interposed for and in fetvour of the force and 
validity of the said wiU, and the probate thereof, here- 
tofore granted to me to be confirmed, and delivered out 
of the re^stry to me, or to him on my behalf, and me 
to be dismissed firom the said decree, and all further ob- 
servance of justice in respect thereof; and generally, &c. 

In those cases where the proceeding has been com- 
menced by the next of kin, entering a caveat against a 
grant of probate passing to the executor, the proxy 
of the latter is nearly the same in form with those 
already given, except that it will also contain an autiio- 
rity to his proctor, either ''to admit the interest of 
A. B. as such natural and lawful brother, (or other rela- 
tive,) and next of kin/* or *' to deny the interest of 
A. B. &c. and in case the same shall be propounded, 
then to oppose the same, &c/* 

The proxy of the next of kin, or caveator, is the 
same as any other proxy already given,, as from a next 
of kin, except that it also contains a clause relative to the 
question of interest, viz. ''and in case my interest shall 
be denied, then to propound the same, and oppose the 
said will, &c/' 

On the day fixed for the return of the decree, and the 
appearance of the party or parties cited, the promoter's 



TESTAMENTARY CAUSES* ^71 

proctor will bring the process into court) and if no 
appearance be then given on behalf of the defendant, 
the judge or surrogate will continue the certificate of 
the execution of the decree to the next court, t. e. wiU 
enlarge the time of appearance for that period. If no act 
is required of the party cited, the certificate of the man- 
date is kept open till the sentence of the court is finally 
giTen, the whole proceedings going on behind his back, 
orin/wmam coniunuuAe, for it is not usual to signify 
and attach a defendant in these cases, as no advantage can 
result therefrom to the other party. If however an in- 
ventory is called for, or a previous grant of administra- 
tion or probate is sought to be lodged in courts and^ 
notwithstanding this, an appearance is declined by the 
party cited, it then becomes necessary to proceed to a 
significavit, as a consequence of which the contumacious 
party is attached until obedience. It is my intention 
to treat only of those proceedings where an appear- 
ance is given of all parties interested, and the question 
is contested in regular form. 

The proctor for the next of kin having given an ap« 
pearance and exhibited a proxy firom his party (ht 
parties, and the executor having admitted his client's 
interest as such, the judge makes an assignation on 
both proctors to bring in affidavits of scripts of their 
respective parties, t. e. to file a statement on oath of all 
testamentary documents or memoranda, of whatever 
date, (including drafts and instructions for wills or codi- 
cils of the deceased,) which have at any time come to 
their possession or knowledge(A), 

(b) No papen of a testamen- Langmead v. Lewiii Phill. R. 3, 
taiy nature can be withheld, p. 326. 



473 TESTAMENTARY CAUSBfi. 

These are annexed to the affidavits as otherwise 
accounted for. 

Should one party aver in his affidavit, either from 
personal knowledge or information and belief, that the 
other party has or formerly had in his possession or 
custody, a script, which he has not produced, or the 
absence of which he has not explained, the court will at 
the prayer of the proctor of the former, assign the other 
party to bring in a further and fuller affidavit of scripts, 
and in case of laches, will decree a monition against him 
to the same effect, {c) 

If the interest of the party asserting himself to be 
next of kin is denied by the executor, the suit then, 
for a time, assumes a different form. 

The next of kin, by the denial, is compelled to pro- 
pound his interest in a preliminary suit of exactly the 
same nature as that which is termed an interest cause. 
And the interest of the next of kin being ultimately 
proved he is admitted by the court a contradictor to 
the will, and the testamentary or principal suit thence- 
forward goes on in the same manner as if the interest 
of the party had been originally confessed by the 
executor. 

If the next of kin is also a legatee under the will 
which he puts in suit, and has received the ilmount of 
such legacy, although legally admissible as a contradic- 
tor, he must bring in his legacy with all interest accrued 
upon it, before proceeding in the cause (d). 



(c) Feetham ▼. Smith, Prer. (<Q Bell t. Armstrong, Add. R. 
Ct of Cant. 1 aess. Mich. Term, vol l, p. 374, and cases cited in 
1S43. note. Braham ▼. Burchell, Add. 

R. vol, 3, p. 256. 



TESTAMENTARY CAUSES, 



473 



The affidaTit as to scripts, of the executor, is in the 
following form: — 

Affidavit qf Scripts of Executor. 

C. D. agwMt E. P. Affidavit of 

In the goods of A. B., deceased. ^ executor. 

Appeared personally CD., of , in the 

county of , Gentleman, party in this 

cause, and the sole execator named in the last wiU and 
testament of the said A. B., late of , in the 

county of , Esquire, deceased, and made oath 

that no script or scroU, paper or parchment-writing, 
being or purporting to be, or having the face, force, 
form, or effect of a will or codicil, or other testamen- 
tary of the said deceased, at any time, either before or 
since his death hath come to the hands, possession, or 
knowledge of this deponent, save and except the true 
and original last will and testament of the said de- 
ceased, now hereunto annexed, bearing date the 
day of , in the year of our Lord , 

and wherein this deponent is named and appointed sole 
executor and residuary legatee. 

(Signed) C. D. 

On the day of , 18 , the said 

C. D. was duly swom^to the truth of this affidavit, be- 
fore me 

H. I., Surrogate* 

Present, 

Richard Addams, Notary Public. 

The affidavit of scripts of the next of kin, setting up 
an intestacy, is in the following form :— 



474 



TESTAMENTARY CAUSES. 



Affidavit of Scripts qf next qf Kin. 
Affidavit of ^ C. D. against E. F. 

scripts of _ 

next of kin. In the goods of A. B., deceased. 

Appeared personally E. F.^ of ^ m the 

county of , widow^ one of the parties in 

this cause^ and made oath that no script, scroll^ paper, 
parchment, or other writing, being, or purporting to be^ 
or having the &ce, force, form, or effect of a will or 
oodidl, or other testamentary disposition of the said 
A. B., late of , in the coimty of , 

Esquire, deceased, at any time, either before or smoe 
his death, have come to the hands, possession, or 
knowledge of this deponent, save and except the pre- 
tended last will and testament of the said deceased, 
bearing date, as pretended, on the day of 

, in the year , and wherem 

C. D., the other party in this cause, is appointed sole 
executor and residuary legatee. 

(Signed) £. F. 

On the day of , in the year 

18 , the said E. F. was duly sworn to the truth of the 
aforegoing affidavit, by virtue of the annexed commis- 
sion, by me, 

H. I., Rector of the parish 
of aforesaid, and Commiaaoner. 

In the presence of 

L. M., of , Solicitor. 

N. O., of , Gentleman. 

These affidavits, it will be observed, are sworn either 
before a surrogate of the court, or a clergyman acting 



TESTAMENTARY CAUSES. 475 

under a special commission issued for that purpose, 
which is directed to the officiating minister of the 
parish in which the deponent resides. 

On die next court-day after the assignation, the affi« 
davits and scripts are brought in, and the commissions, 
if any, returned. If it appears from the affidavit of 
^ther party that any testamentary schedule or instru- 
ment of the deceased is in the hands of a person who 
declines to deliyer it up without the order or guarantee 
of the court, the proctor for such party applies to the 
coort^ and a monition to that effect is then decreed 
against the person withholding the document. 

The monition is in the following form, viz. :*— 

Monition to bring in a Script. 

Wiffiam, by Divine Providence, &c. Monition to 

Whereas the Bight Honourable Sir Herbert Jenner, g^pt/° * 
Knight, Doctor of Laws, Master, Keeper, or Commis- 
sary of our Prerogative Court of Canterbury, lawfully 
constituted, rightiy and duly proceeding in a certain 
canae or business of proving by witnesses, in solemn 
form of law, the pretended last will and testament of 
A. B^ late of , deceased, bearing date on 

, promoted by C. D., the pretended exe- 
cutor named in the said will, against E. F., the sole 
executor named in the true and original last wiU and 
testament of the said deceased, bearing date on 

, hath, at the petition of the proctor of the said 
£* F., alleging that it appears by the affidavit of his 
said |iarty as to scripts, by him made and sworn on or 
^l>out , and now remaining in the registry 



476 TESTAMENTARY CAUSES. 

of otir said court, that a certain original testamentary 
script, being or purporting to be the draft of the said 
pretended will of the said deceased^ bearing date as 
aforesaid, is now in the possession of G. H.^ of 

, Solicitor, decreed the said G. H. to be 
monished and cited to appear on the day^ at the time 
and place, and to the effect hereinafter mentioned, jus- 
tice so requiring: we do therefore hereby authorize, 
empower, and strictly enjoin and command you, jointly 
and severally, peremptorily to monish and cite> or cause 
to be monished and cited, the said G. H. by shewing, 
&c., to appear personally, or by his proctor duly consti- 
tuted, before the said Sir Herbert Jenner, Knight, 
Doctor of Laws, the judge aforesaid, his surrogate, or 
some other competent judge in this behalf, in the 
Common Hall of Doctors' Conmions, &c., on the sixth 
day after the service of these presents, if it shall be a 
general session, &c., then and there to exhibit, bring 
into, and leave in the registry of our said court the 
said original draft will of the said deceased, and also 
all other original testamentary papefs or scripts of the 
said deceased now in the possession of him the said 
G. H. ; and fturther to do and receive, &c 

This monition is served and returned into court in 
the same manner as a decree. The party monished, or 
his proctor, in obedience to the mandate, brings in the 
testamentary papers required of him, annexed to an 
affidavit in verification (e). No proxy is exhibited by 
his proctor, and he is usually dismissed on the next 

(e) This affidavit, however, of the mandate not being allowed 
cannot be oompelled, the terms to extend to an oath. 



TESTAMBNTARY CAUSES. 4/7 

oourt-day, by the consent of the parties fai the cause^ 
unless it should appear that any document, purporting 
to be under the hand of the testator^ is still withheld 
byhizn* 

The scripts having been filed in the manner I have 
just mentioned, the proctor for the next of kin, or con- 
tradictor, declares he opposes the mH or testamentary 
disposition in question, whereupon the proctor for the 
executor propounds the same in acts of court, and files 
an aUegation m support thereof. 

Before the executor propounds the will, he may, at 
this stage of the proceedings, e» abundanii cautela, and 
\i order to guard against the possibility of any other 
next of kin than those who have already appeared in 
the suit, attempting to contest the instrument at a 
ftttore period, on the ground of not having been parties 
to the suit, extract a decree to see proceedings, i. e. 
to see the will propounded, and the usual ensuing 
steps taken in regard thereto, against the other next 
of kin. 

If the executor has already propounded the paper 
against the opponent who has appeared in the cause, 
he must, notwithstanding, on the return of a decree of 
this kind against the other next of kin, whether an 
appearance is given on behalf of them or not, repro- 
pound the document in the same manner as before. If 
all the parties cited to see proceedings do not appear, 
the suit is conducted inpcenam against the absent. 

The decree is as follows :•— 



478 TESTAMENTARY CAUSES. 






Decree to see Proceedings against other next of 

Kin. 

Decree to William^ by Divine Proyidence, &c. 

see proceed- Whereas there is now depending in judgment before 

ines against *^ o j o 

other next of the Right Honourable Sir Herbert Jenner^ Knigot, 
Doctor of Laws^ Master^ Keeper, or Commissary of 
our Prerogative Court of Canterbury, lawfully consti- 
tuted, a certain cause or business of proving in solemn 
form law, the last will and testament (as contained in 
two paper writings, marked A and B) of James Wood, 
late of the city of Gloucester, Elsquire, deceased, (the 
said paper writings bearing date respectively the second 
and third days of December, in the year of our Lord 
one thousand eight hundi)ed and thirty-four,) and of 
granting a probate thereof to Matthew Wood, Esquire, 
John Chadbom, Jacob Osborne, and John Surman 
Sunnan, the executors therein named, which said cause 
is promoted and brought by the said Matthew Wood, 
John Chadbom, Jacob Osborne, and John Sunnan 
Surman, against Elizabeth Goodlake, widow, the lawful 
second cousin of the said deceased ; and whereas the 
said deceased departed this life a bachelor, without a 
parent, brother or sister, uncle or aunt, nephew or 
niece, cousin-german or cousin-german once remoTcd, 
but leaving behind him the said Elizabeth Goodlake, 
his lawful second cousin, and only known next of kin, 
and as such the sole person entitled to the personal 
estate and effects of the said deceased^ in case he should 
be pronounced to have died intestate, (as in and by an 
affidavit duly made and sworn to by William Reed 
King, of Serjeant's Inn, in the city of London, Soli- 
citor, and now remaining in the registry of our said 



TESTAMENTARY CAUSES. 479 

court, will more fully and at large appear;) and whereas _ 
it hath been alleged, before the Right Honourable the 
Judge aforesaid, that it is necessary in the premises to 
cite, or cause to be cited, all other the next of kin (if 
any) of the said deceased in special, and all persons in 
general, having or pretending to have any right, title, 
dmm, or interest in or to the goods, chattels, and 
credits of the said deceased, to the effect hereinafter 
mentioned; and whereas the Right Honourable the 
Judge aforesaid, rightly and duly proceeding, did, at 
the petition of the proctor of the said Matthew Wood, 
John Chadbom, Jacob Osbom, and John Surman 
Surman, decree all other the next of kin, if any, of the 
said deceased in special, and all persons in general, 
haying or pretending to have any right, title, claim, or 
interest in or to the goods, chattels, and credits of the 
said deceased, to be cited, intimated, and called to 
appear in judgment on the day, at the time and place, 
in manner and form and to the effect hereinafter men- 
tioned, justice so requiring; we do, therefore, hereby 
authorize, empower, and strictly enjoin and command 
you, jointiy and severally, peremptorily to cite, or cause 
to be cited, all other the next of kin, if any, of the said 
deceased in special and all persons in general having or 
pretending to have any right, title, claim, or interest in 
or to the goods, chattels, and credits of the said de- 
ceased by publicly affixing up these presents for some 
time in the Royal Exchange, in the city of London, 
during the usual time of merchants resorting thither, 
and by affixing, and leaving thereon affixed, a true copy 
hereof, that they or any of them do appear personally, 
or by their proctor or proctors lawfully constituted, 
before our master, keeper, or commissary aforesaid, or 



^'^0 TfiSTAMENJAIlY CAVSE8. 

before his surrogate or some other competent judge in 
this behalf^ in the Common Hall of Doctors' Clommons, 
situate in the parish of Saint Benedict, near Paul's 
Wharf^ London, and place of judicature there, on die 
thirtieth day after service hereof, in manner aforesaid, 
if it shall be a general session^ bye-day, caveat-day, or 
additional court-day of our said court, otherwise on the 
general session, bye-day, caveat-day, or additional court- 
day of our said court then next ensuing, at die hour of 
ten in the forenoon, and there to abide if occasion re- 
quire^ during the sitting of the said courts and also on 
every other court-day, then and there to see and hear 
all and every the judicial acts, matters^ and things 
needful, and by law required to be done and expedited 
in and about the premises^ imtil a definitive sentence in 
writing, shall be read^ signed, promulged^ and given, or 
until a final interlocutory decree shall be made and in- 
terposed in the said cause or business,* if they, or 
any or either of them, shall think it for his, her, 
or their interest so to do, and further to do 
and receive as unto law and justice shall appertain, 
under pain of the law and contempt thereof, at the 
promotion of the said Matthew Wood^ John Chadbom, 
Jacob Osbom, and John Surman Surman ; and more- 
over that you intimate, or cause it to be intimated unto 
all other the next of kin, if any, of the said deceased ; 
and aU persons in general having or pretending to ha?e 
any right, title, claim^ or interest in or to the aforesaid 
goods, chattels, and credits of the said testator, (and to 
whom respectively we do also intimate by the tenor of 
these presents,) that if he, she^ or they, or some or one 
of them^ do or does not appear on the several days, and 
at the time and place and to the effect and in manner 



TESTAMENTARY CAUSES. 481 

And form as hereinbefore is mentioned; or appearing, 
do or does not shew good and sufficient cause, con- 
dudent in law, to the contrary, our master, keeper, or 
ooromissary aforesaid, his surrogate, or some other 
competent judge in this behalf, doth intend to proceed, 
and wiD proceed to do all and erery the judicial acts, 
matters, and things needful, and by law required to be 
done and expedited in and about the premises, and to 
the reading, signing, promulging, and giving a definitive 
sentence in writing, or to the making and interposing a 
final interloctttary decree in the said cause or business, 
the absence or rather contumacy of all other the next of 
Idn^ if any, of the said deceased, and all persons in 
general having or pretending to have any right, titie, 
claim or interest in or to the goods, chattels, and credits 
of the said deceased so cited and intimated as aforesaid, 
in any wise notwithstanding, and what you shall do or 
cause to be <{one in the premises, you shall duly certify 
our master, keeper, or commissary aforesaid, his surro- 
gate, or some other competent judge in this behalf, 
together with these presents. 

Given at London, under seal of our said Prerogative 
Court of Canterbury, the fourteenth day of June, in the 
year of our Lord one thousand eight hundred and thirty- 
nX) and in the eighth year of our translation. 

In the like manner, in order to conclude the legatees 
or the court from re^opening the question, after a decision 
has been given against the will, on the allegation that 
the executor who propounded it in the first instance 
had colluded with the next of kin to procure such un- 
favourable result, the next of kin have been allowed to 

I I 



482 



TBSTAHBNTARY CAUSES. 



issue a decree against the legatees to appear and see 
proceedings in the cause^ notwithstanding that, as a 
general rule, the acts of the executor are considered bind- 
ing on all persons concerned therein (^) ; and generally 
a next of kin is entitled to take such a step to l^ally 
dear off the existence of an outstanding will, which he 
presumes to be inyalid. The decree is in the following 
terms: — 

Decree to propound Will and see Proceedings. 



Decree to 
propound 
will, at the 
instance of 
next of kin, 
against the 
legatees 
therein 
named* 



William, &c. 

Whereas the Right Honourable Sir Herbert Jenner 
Fust, Knight, Doctor of Laws, Master, Keeper, or 
Commissary of our Prerogative Court of Canterbury, 
lawfully constituted, rightly and duly proceeding in a 
certain cause or business, now depending before him in 
judgment, of granting letters of administration of 
all and singular the goods, chattels, and credits of 
Robert Peam, late of No. I, Granby Terrace, New 
Cross Road, in the parish of Saint Pbul, Deptford, in 
the county of Kent, deceased, promoted by Allnet, 
otherwise Alnet Prin, the lawful cousin german once 
removed, and one of the next of kin of the said deceased, 
against John Abraham Bassett, the pretended cousin 
german twice removed, of the said deceased, at the pe- 
tition of the proctor of the said Allnet, otherwise Alnet 
Prin, alleging that the said deceased departed this life on 
or about the first day of October, 1842, (having, &c.,) a 
bachelor without parent, brother or sister, uncle or 



(g) Colvin V. Fraser, Hagg. R. 1, p. 107. 



TESTAMENTARY CAUSES. 483 

aunt, nephew or niece, or cousin german, and intestate, 
leaving behind him the said AUnet, otherwise Ahiet 
Prin, his lawful cousin german once removed, and one 
of his next of kin ; and further alleging that a pretended 
will of the said deceased, bearing date the second day 
of June, 1831, hath been brought into the re^stry of 
our said court annexed to an affidavit of William Har- 
rison, Esqture, the Reverend Richard Bathurst Green- 
law, Clerk, and Edward Hobson Vitruvius Laws, 
Seijeant-at-Law, whereby, as pretended, the said de- 
ceased bequeathed to his cousin, Edward Porter, or to 
his descendants, the residue of his property ; and did 
alsQ^ as pretended, name the said John Abraham Bas- 
sett, and also Elizabeth Bassett, Joseph Bassett, and 
William Bassett, legatees in the sum of £100 each, but 
did not therein name any executor, and that the said 
Edward Porter is since deceased, and Eliza Porter, 
spinster, and Mary Thompson, (wife of Peter Thomp- 
son,) formerly Porter, spinster, are the natural and 
lawful children of the said Edward Porter, deceased, 
and as such the residuary legatees, as pretended in the 
said pretended will named ; hath decreed the said Eliza 
Porter, spinster, and Mary Thompson, (wife of Peter 
Thompson,) and Elizabeth Bassett, Joseph Bassett, and 
William Bassett, to be cited, intimated, and called to 
appear in judgment on the days, at the time and place, 
and to the effect and purpose hereinafter mentioned, 
justice so requiring ;) we do, therefore, &c., to cite, or 
cause to be cited, the said, &c., to appear on the fourth 
session of this present Trinity Term, &c., then and 
there to propound the said pretended will, and also to 
see and hear all and every the judicial acts, matters, 
and things needful, and by law required to be done and 

I I 2 



4B4 TBdTAMBNTARY CAU8B8. 

expedited in and about the premises, until a definitive, 
sentence in writing, &e. ; and that you do moreover 
intimate, &c. 

Dated at London, the 8th day of May, 1843, &c 

And where there is only one legatee who sustatM a 
codicil opposed by the executors of the will, the latter, 
with a similar intention, as in the case just mentioned, 
of concluding the other legatees, may extract a decree 
against all the legatees named in such codicil to appear 
and propound it, with an intimation that in their ab- 
sence the judge vrill proceed to the completion of all 
necessary legal acts in relation thereto. 

The last-mentioned decree is as follows :*-> 

Decree to propound a Codicil and see Proceed- 

ings. 

Decree to William, &c* To all and singular, &c., greeting : 
codld^agaLst Whereas there is now depending in judgment before 
Ae legatees the Right Honourable Sir Herbert Jenner, Knight, 
named, at the Doctor of Laws, Master, Keeper, or Commissary of our 
instance of Prerogative Court of Canterbury, lawfully constituted, 
named in the a certain cause or business of proving, in solemn form 

will 

' of law, by good and sufficient witnesses, the last will 

and testament, as contained in two paper writings 
marked A and B, of James Wood, late of the city of 
Gloucester, Esquire, deceased, bearing date respectively 
the second and third days of December, in the year of 
our Lord one thousand eight hundred and thirty-four, 
promoted by Matthew Wood, Esquire, John Chadbom, 
Jacob Osborne, and John Surman Surman, the execu- 
tors therein named, against Elizabeth Goodlake^ widow. 



Testamentary causes. 4S5 

the second cousin, and only next of kin of the said 
deceased; and whereas in the progress of the said 
cause there hath been brought into the registry of our 
said court, a certain pretended paper writing, purporting 
to be a codicil to the last will and testament of the said 
deceased, and which said paper writing is in the words 
or to the tenor following, to wit : '' In a coctidl to my 
will, I gave the Corporation of Gloucester £140,000; in 
this I wish my executors would give £60,000 more to 
them for the same purpose as I have before named. I 
would also give to my friends, Mr. Philpotts £50,000^ 
and Mr. George Council £10,000, and to Mr. Thomas 
Helps, Cheapside, London, £30,000, and Mrs. Good- 
lake, mother of Mr. Surman, and to Thomas Wood, 
Smith Street, Chelsea, each £20,000; and Samuel 
Wood^ Cleveland Street, Mile End, £14,000, and the 
latter gentleman's family £6,000; and I confirm all 
other bequests and give the rest of my property to the 
executors for their own interest. Gloucester City, Old 
Bank, July, 1835, James Woodf' and which said pre- 
tended paper writing is annexed to a certain affidavit of 
scripts made and sworn to by the said Thomas Helps, 
a l^atee therein named, as aforesaid; and whereas 
our master, keeper, or commissary aforesaid, rightly 
and duly proceeding, hath, at the petition of the proctor 
of the said Matthew Wood, John Chadbom, Jacob 
Osborne, and John Surman Surman, decreed the Right 
Worshipful the Mayor and Corporation of the city of 
Gloucester, John Philpotts, George Worrall Counsel, 
(in die said codicil written Council,) the said Thomas 
Helps, Thomas Wood, and Samuel Wood to appear ; 
to wit, the said Mayor and Corporation by their syndic, 
and the said John Philpotts, George Worrall Counsel, 



486 TESTAMENTARY CAUSES. 

Thomas Hdps^ Thomas Wood^ and Samuel Wood^ 
personally, or by their proctors or proctor, duly consti- 
tuted, before our said master, keeper, or commissary, 
his surrogate, or some other competent judge in this 
behalf, in the Common Hall of Doctors' Commons, 
situate in the parish of Saint Benedict, near Paul's 
Wharf, London, and place of judicature there, on the 
sixth day after they shall have been served with this 
decree, if it be a general session, bye-day, caveat-day, 
or additional court-day of our said court ; otherwise on 
the general session, bye-day, caveat-day, or additional 
court-day of our said court then next ensuing, at the hour 
of ten in the forenoon, and there to abide, if occasion 
require, during the sitting of the court, then and there 
to propound and prove, by good and sufficient witnesses, 
in solemn form of law, the said pretended testamentary 
paper writing ; if they, any or either of them, shall 
think it for their interest so to do ; and further to do 
and receive, as unto law and justice shall appertain, 
under pain of the law and contempt thereof, at the 
promotion of the said Matthew Wood, John Chadbom, 
Jacob Osborne, and John Surman Surman ; and more- 
over you shall intimate, or cause to be intimated, to the 
said Right Worshipful the Mayor and Corporation of 
the city of Gloucester, John Philpotts, George Worrall 
Counsel, (in the said pretended codicil written Council,) 
Thomas Helps, Thomas Wood, and Samuel Wood, that 
if they, some or one of them, do or does not ap- 
pear, or appearing do or does not shew good and 
sufficient cause, concludent in law to the contrary, 
our master, keeper, or commissary aforesaid, his surro- 
gate, or some other competent judge in this behalf, 
doth intend to proceed, and will proceed to do all such 



TESTAM£MTARY CAUSES. 487 

judicial acts^ mattera^ and things as shall be needfiil and 
necessary to be done in and about the premises; and 
what you shall do or cause to be done in the premises 
you shall duly certify our master^ keeper^ or commissary 
aforesaid, )aia surrogate, or any other competent judge 
in this behalf, together with these presents. 

Dated at London, the 14th day of June, in the year 
of our Lord, 1836, and in the eighth year of our trans- 
lation. 

The primary plea, propounding the will and setting 
fortb the /actum of its execution, either alone or in 
conjunction with other circumstances, may be illus* 
trated by the following forms : 

Allegation. 

In the Prerogative Court of Canterbury. Allegation 

On Saturday, the seventh day of March, in the year execution^f 
1840, before the Right Honourable the Judge, in a codicil. 
the Common Hall of Doctors^ Commons, London. 
Mackenzie against Teo. 
F. Clarkson. Buckton. 



A business of proving in solemn 
form of law, by good and suffi- 
cient witnesses, the true and 
original codicil to the last will 
and testament of George Ac- 
land Barbor, late of Freming- 
ton House, in the parish of 
Fremington, in the county of 
Devon, but at Frankfort on 
the Maine, Esquire, deceased. 



On which day, F. 
Clarkson, in the 
name and as the 
lawful proctor of 
the said Anne 
Mackenzie, (wife 
of Tom Dight 
Mackenzie,) ex- 
hibited the true 
and original co- 



488 TESTAMEWTARY CAUSB8. 



snch oodidl bearing date the 
6di day of July, 1838^ pro* 
moted by Anne Mackenzie, 
(wife of Tom Dight Macken- 
zie^) formerly Melton, spinster, 
a legatee named in said codicil, 
against WilUam Arundell Yeo, 
the sole executor named in the 
said will. 



dicil to the hat 
will and testar 
ment of the said 
Greoige Adand 
Barbor, Esquire^ 
the party in this 
cause, deceased, 
and now remain- 
ing in the regis- 
try of this court, 
and beginning thus, ^ This is to certify that I the 
said George Adand Barbor, of Fremington, in the 
county of Devon, Esquire,'' ending thua, ^ And I 
jfuUy authorise and command my heirs, executors, 
and administrators, each and every of them, to 
receive and view this in every respect as a oodicii 
to my last will and testament, and diaehaige it 
accordingly," and thus subscribed, ''O. A. Bar- 
bor/' and by all better and more effectual ways, 
means, and methods, and to a& effects and forms 
of law, which may be most beneficial and effectual 
for his said party, did say, allege, and in law ard- 
culately propound as follows, to wit: — 
Fint That the said George Adand Barbor, the teatator in 

this cause, being of the age of twenty*-one years and 
upwards, and of sound and disposing mind, memory» 
and understanding, and having a mind and intention to 
make arid execute a codicil to his last will and testa- 
ment in writing, and thereby to benefit Anne Mdtoo, 
spinster, (now Anne Mackensie, wife of Tom Dig^t 
Mackenzie,) party in this cause, then and there present 
with him, began to write such codicil with his own 



TBSTAMENTART CAUSES. 489 

luind^ but that being at such time in a nenroos state^ 
he, the said George Acland Barbor, after writing 
the two first words of the said codicil, told or in- 
stmcted the sidd Anne Melton to go on writing and 
comiriete the same from his dictation ; and that in pur* 
snianoe of sfuc^ instructions, and ficom the dictation of 
the -said testator, tibe very codidl now pleaded and 
propounded in tiiis cause, bearing date the sixth day of * 
July, one thousand eight hundred and thirty-eight, was 
so drawn up and reduced into writing ; that after the 
same was so drawn up and reduced into writing, it was 
read over audibly and distinctly to or by the said tes- 
tator, who well knew and understood the contents 
tiiereof, and liked and approved of the same, and in 
testimony of such his good liking and approbation, 
he, the said testator, on or about the said sixth day of 
July, one thousand eight hundred and thirty«eight, 
being the day of the date of the said codicil, signed his 
name at the foot or end thereof, in manner and form as 
the same now appears, in the presence of two or more 
credible witnesses present at the same time, who (or at 
least two of whom,) respectirely subscribed their names 
to the said codicil, in the presence of the said testator, 
as witnesses to the due execution tiiereof, in manner 
and form as also now appears thereon ; that the said 
tMator did give, will, bequeath, devise, dispose, and do 
in all things as in the said codicil is contained, and was, 
at and during all and singular the premises, of sound 
and fisposing mind^ memory, and understanding, 
talked and discoursed rationally and sensibly, and wdl 
knew what he said and did, and what was said and done 
in his presence, and was fully t»pable of making and 
executing a codicil to his last will and testament, or of 



490 



TESTAMBNTARY CAUSES. 



Second. 



doing any other serious or rational act of that or tiie 
lilM nature^ requiring thought, judgment, and reflection ; 
and this was and is true, pubfic, and notorious, and so 
much the said William Arundell Teo^ the other party in 
this cause, doth know or hath heard, and in his oon- 
sdenoe belieres, or hath confessed to be true, and the 
party proponent doth allege and propotmd every thing 
in this and the subsequent article of this allq;ation, 
contained jointly and sererally. 

That all and singular the premises were and are trae, 
and so forth. 



Alleffation 
pleading the 
execution of 
a wiU and 
other circum* 
itances. 



Allegation. 

Prerogative Court of Canterbury. 
On the caveat-day after Trinity Term, to wit, Tues- 
day, the sixth day of September, in the year 1842. 
FiLLBB against Touno, (formerly Fillbb.) 
A. O. Clarkson. Buckton. 

A business of bringing into and ^ On which dajj 



leaving in the registry of this 
court the probate of the last 
will and testament of William 
Filler, late of the two Brewers' 
Public House, Little Saint 
Andrew Street, Seven Dials, 
in the parish of Saint Giles 
in the Fields, in the county of 
Middlesex, Licensed Victualler, 
deceased, and of propounding 
and proving the said will in 
solemn form of law, by good 
and sufficient witnesses, or of 



Buckton, in the 
name and as the 
lawful proctor of 
the said Sarab 
Young, (wife of 
James Young,) 
heretofore Filler, 
widow, and under 
that denomba- 
tion exhibited 
tiie true and ori- 
ginal kst will and 

testament of the 



T£8TAMBNTARY CAUSES. 



491 



shewing cause why the said 
probate should not be revoked 
and declared null and void^ and 
the said will declared invalid^ 
and the said deceased pro- 
nounced to have died intestate; 
promoted by George Filler, the 
natural and lawful son and 
only child of the said deceased, 
against Sarah Filler Toung, 
(wife of James Young,) here- 
tofore, widow, the relict and the 
sole executrix named in the 
true and original last will and 
testament of the said deceased. 



said William Fil- 
ler, deceased, 
bearing date the 
23rd day of 
April, in the year 
1840, and now 
remaining in the 
registry of this 
court, annexed 
the said will 
beginning thus, 
''this is the last 
will and testa- 
ment of me, Wil- 
liam Filler;" end- 



ing thus, '' this 
twenty-third day of April, one thousand eight hun- 
dred and forty," and thus subscribed ''William 
Filler," and by all better and more effectual ways, 
means, and methods, and to all intents and purposes 
m the law whatsoever, which may be most beneficial 
and effectual for his said party, said alleged, and 
in law articulately propounded as follows, to wit. 
That William Filler, the party in this cause, deceased. First 
being of the age of twenty-one years and upwards, 
and of sound and disposing mind, memory, and under- 
standing! ai^d having a mind and intention finally to 
settle his affairs, and make and duly execute his last 
^ and testament, in writing, did give directions and 
instmctions for making the same, and pursuant to such 
dffecdons and instructions, the very will now pleaded 
and exhibited in this cause, on the part and behalf of 
the said Sarah Toung, (wife of James Young,) hereto- 



4% TESTAMENTARY CAUSES. 

fore Filler, widow, and now remaining in the registry of 
this court, bearing date, beginning, ending, and sub- 
scribed, as aforesaid, was drawn up and reduced into 
writing ; and after the said will had been so drawn up 
and reduced into writing, the same was read all over 
audibly and distinctly to or by the said testator, ^o 
well knew and understood the contents thereof, and 
liked and approved of the same, and in testimony of 
such his good liking and approbation, he, the said tes- 
tator, did, on or about the 23rd day of April, in the year 
1840, being the day of the date of die said will, set and 
subscribe his name thereto, at the foot or end hereof, in 
manner and form as now appears thereon, and did make 
or acknowledge such signature in the presence of two or 
more credible witnesses present at the same time, who^ 
or at least two of whom^ thereupon respectively attested 
tod subscribed the said will in the presence of die 
said testator and of eadi other, as witnesses of the due 
execution thereof, in manner as now appears thereon. 
And the said testator of his said will did nominate, 
constitute, and appoint his wife, the said Sarah Toung, 
then Filler, sole executrix, and gave, willed, derised, 
bequeathed^ disposed, and did in all respects as in the 
said will is contained and was at and during all and 
singular the premises, of sound and perfect mind, me- 
mory, and understanding, talked and discoursed ratio- 
nally and sensibly, and well knew and understood what 
he said and did, and what was said and done in his pre* 
sence, and was fully capable of giving instructions for 
and making and executing his last will and testament, 
and of doing any other serious or rational act of that 
or the like nature, requiring thought, judgment, and 
reflection ; and this was and is true^ public, and noto- 



TESTAMENTARY CAI^SES. 493 

nous, and so much the said George Filler, the other 
party in this cause, doth know^ or hath heard^ or in his 
conscience believes, and hath confessed to be true, and 
the party proponent doth allege and propound every* 
thing in this allegation contained^ jointly and severally.. 

That William Wilkinson, one of the attesting and Second, 
sabscribing witnesses to the said will, since the making 
and execation thereof, left this country for the purpose 
of setding in the colony of Australia, and is now, if 
living, resident in some part or place of such colony, 
though where in particular the party proponent is 
unable to set forth ; and the party proponent doth fur- 
ther ^XhsgQ and propound that the said William Wilkin- 
son was and is, (if living,) a person of good character, 
credit, and reputation, and one who would not set or 
have set his name as a witness to any will, deed, or 
other instrument in writing whatsoever, unless he had 
seen the same duly executed, and was well convinced 
that the person executing the same was of sound and 
perfect mind, memory, and imderstanding, and that a$ 
and for such a person of good character, credit, and 
reputation the said William Wilkinson was and is com- 
monly accounted, reputed, and taken, by and amongst 
his n^hbours, friends, and acquaintances; and this 
was and is true, public, and notorious, and the party 
proponent doth allege and propound as before. 

That the names, '^ William Wilkinson,^' appearing Third, 
set and subscribed as the names of one of the attesting 
and subscribing witnesses, to the said will of the said 
deceased, were and are of the proper handwriting and 
subscription of the said William Wilkinson, in the next 
preceding article mentioned, and are so known or 
believed to be by divers persons of good faith and 



494 



TESTAMENTARY CAUSES. 



Fourth. 



credit^ who knew and were well acquainted with the 
said William Wilkinson^ and have frequently seen him 
write^ and also write and subscribe his luune to writings, 
and are thereby and by other means become well 
acquainted with the manner and character of his hand- 
writing and subscription ; and this was and is troe, 
and the party proponent doth allege and propound as 
before. 

That all and singular the premises were and are true, 
public^ and notorious^ and so forth. 



Allegation. 



Allegation Prerogative Court of Canterbury, 
pleading the q^ ^^ second session, Michaelmas Term, to wit, 

Thursday, the sixteenth day of November, 1S43. 
HoBART against Hobart. 
Buckton. Nelson. 



execution of 
a will and 
other circum- 
stances. 



A business of proving in solemn 
form of law, the last will and 
testament of George Hobart, 
late of Porchester Place, Ox- 
ford Road, P^dington, in the 
county of Middlesex, Esquire, 
Major of Her Majesty's Second 
Regiment of Dragoons, or Scots 
Greys, deceased, promoted by 
Mary Hobart, widow, the relict 
of the said deceased, and a le- 
gatee named in the said wiH, 
against the Reverend Henry 
Charles Hobart, Clerk, the na- 



• 



On which day, 
Buckton, in the 
name and as tbe 
lawfiil proctor of 
the said Mary 
Hobart, widov^ 
and imder that 
denomination, 
exhibited the true 
and original last 
will and testa- 
ment of the sadd 
Geoige Hobart, 
Esquire, deoeas- 



TESTAMENTARY CAUSES. 495 



toral and lawful father of the 
said deceased. 



ed, bearing date 
the ninth day of 
May^ in the year 
one thounnd eight hundred and forty-three^ and 
now remaining in the registry of this court, begin- 
ning thus, ^' LfOndon, 9th May, 1843, 7, Porchester 
Place, Oxford Road. Sir, I now have;'' ending 
thus, ^' the best for me, and believe me yours most 
truly ;'^ and thus subscribed, ^'George Hobart;*' 
and by all better and more effectual ways, means, 
and methods, and to all intents and purposes in 
the law whatsoever, which may be most beneficial 
and effectual for his said party said, alleged, and in 
law articulatdy propounded as follows, to wit: 
That the said George Hobart, Esquire, the deceased, Fint 
in this cause, being of the age of forty years, departed 
this life on the ninth day of May, in the present year 
one thousand eight hundred and forty-three, without 
child, leaving behind him the said Mary Hobart, widow, 
his lawful relict, and the Reverend Henry Charles Ho- 
hart, Clerk, his natural and lawful father, (the parties in 
^ cause,) respectively the only persons entitled to his 
personal estate and effects, in case he had died intes- 
tate; that the said deceased was, at the time of his 
death, tenant for life of certain manors, lands, and 
hereditaments in the county of Norfolk, producing 
upon the average, after paying insurances and other 
ordinary outgoings, a clear annual sum of one thousand 
three hundred and fifty pounds per annum, or there- 
abouts, subject to the payment thereout of an annuity 
of five hundred pounds per annum, to his mother (now 
living) during her life, and also subject to the payment 
of eight hundred pounds per annum, or thereabouts. 



496 TESTAMENTARY CAUSES. 

for the interest of certain mortgage debts charged on 
the estates, to the eictent, in the whole, of twenty thoa- 
sand pounds, and was also, at the time of his death, 
possessed of or entitled to personal property amounting 
to the sum of nine thousand pounds, or thereabouts, 
the principal part of which last-mentioned sum arose 
from the sale of the commission held by the said de- 
ceased, as major in Her Majesty's aforesaid regiment, 
and which sale had been effected about a month pre- 
vious to the death of the deceased, but charged with 
the sum of four thousand pounds, as hereinafter men- 
tioned; and this was and is true, and so much the said 
Reverend Henry Charles Hobart, the other party in 
this cause, doth know, or hath heard, or in his con- 
science believes, and hath confessed to be true; and 
the party proponent doth allege and propound every- 
thing in this and the subsequent articles of this auc- 
tion contained, jointly and severally. 
That in and by an indenture of settlement, bearing 
Second. ^g^e on the twentieth day of November, one thousand 

eight hundred and thirty-nine, made prior to and m 
contemplation of the marriage of the said deceased 
with the said Mary Hobart, (party in this cause,) then 
Mary Walsh, spinster, between the said deceased, of 
the first part; John Walsh, Esquire, of the second part; 
the said Mary Walsh, now Hobart, daughter of the 
said John Wabh, of the third part; and Henry Gamett 
and William Bolton Cowley, Esquires, of the fourth 
part; after reciting, amongst other things, that the said 
John Walsh had agreed to give as a marriage portion 
with the said Mary Walsh, the sum of two thousand 
pounds sterling, and also to secure the sum of one 
thousand pounds sterling, to be payable on the day of 



I^cstamentahy causes. 497 

his decease^ and reciting that the said George Hobart 
.was desirous to make a provision for the said Mary 
'Walsh, in case she should happen to survive him, or in 
case he should at any time thereafter fail in his circum- 
stances, or become a bankrupt or insolvent ; and that 
the said George Hobart, in consideration of the said 
marriage portion, had executed his bond, with warrant 
of attorney for confessing judgment thereon, to the said 
Henry Gamett and said William Bolton Cowley, for 
the sum of eight thousand pounds, conditioned for the 
payment of four tiiousand pounds sterling within the 
term of one calendar month next after the said Geoige 
Hobart should sell and dispose of his said commission 
in her Majesty's service, it being, as set forth in the 
said indenture, the agreement and intention of the said 
Geoige Hobart and all the other parties thereto, that 
he, the said George Hobart, should and would, when 
and so soon as circumstances might enable him, dis- 
pose of the said commission which he then held in Her 
Majesty's said Second Regiment of North Britain Dra« 
goons, and, out of the sum to be received by such sale, 
pay to die said trustees the said full sum of four thou- 
sand pounds, the same to be held by them upon the 
trusts thereinafter mentioned, of and concerning the 
same; it was witnessed, and thereby declared and agreed, 
that the said Henry Gamett and Williani Bditon 
Cowley should stand possessed of the said sum of two 
thousand pounds, and of the said sum of four thousand 
pounds, in the said indenture mentioned, aft»r the 
solemnization of the said intended marriage, in trust, 
to invest the aforesaid sums as therein mentioned, and 
pay the interest and dividends thereof to the said de- 
ceased, for and during his natural Ufe, and aft»r his 

K K 



496. TESTAAlBNTARY CAUSES. 

decease to permit and suffer the said Mary Walsh to 
receive the same for and during her life^ with a declara- 
tion or proviso^ that in case there should be no child of 
the said intended marriage who, being his son, should 
attain his age of twenty-one years, or die before that 
age leaving lawful issue living at his death, or bom in 
due time after^ or being a daughter, before she should 
attain her age of twenty-one years, or be married with 
such consent as therein mentioned ; then, and in such 
case, the said trustees should stand possessed of the 
said sum of two thousand pounds and four thousand 
pounds respectively, and the stocks, funds, and securi- 
ties aforesaid, upon which the same should be invested, 
with all dividends^ interest, and annual proceeds thence- 
forth to become due and payable in respect of the same 
respectively, upon trust to pay and assign thereout two 
full third parts thereof to the said George Hobart, (if 
living,) or to the executors, administrators, appointees, 
or assigns of the said Geoige Hobart, to the exclusion 
of the said Mary Walsh, and to pay, apply^ and dispose 
of, or transfer the remaining one-third of the said trust 
funds to the said Mary Walsh, if then living, or to the 
executors, administrators, appointees, and assigns of the 
said Mary Walsh, to the exclusion of the said George 
Hobart, to and for &eir own absolute use and benefit^ 
it being the intent of the parties thereto, that in the 
event of there being no issue of the said maniage enti<> 
tied to the said trust funds, that the said Geoige Hobart^ 
or his next of kin, should be entitled to his portion of 
same, and the said Mary Walsh, or her next of kin, to 
her portion of the same ; and it was by the said inden-' 
ture further declared and agreed that the aforesaid 
provision was meant and intended for the jointure of 



TESTAMBNTART CATJSES. ^^9 

Ihe said Mary Hobart, then Walsh, and to be in bar of 
all dower out of any lands of the said deceased, and 
aU thirds which she might otherwise be entitled to at 
comoMKi law, or under the Statute of Distributions, or 
odierwiae howsoever; and it was declared and agreed 
that the said trustees should stand possessed of the said 
sum of one thousand pounds, secured thereby, to be 
paid on the death of the said John Walsh, as therein 
mentioned, when and as the same should be received^ 
upon such and the same trusts in all respects as wercf 
thereinbefore expressed and declared, of and concern^ 
ing the said sum of two thousand pounds, (the marriagd 
portion of the said Mary Walsh,) and of and concerning 
the said one-third of the entire trust fund, in case of 
£uhi03 of issue of the said marriagej and none other 
whatever, as in and by the. said indenture, which will ber 
produced, if necessary, at the hearing of this cause, wiU* 
more fully and at large appear; and this was and is 
true, and the party proponent doth allege and propound' 
as before. 

That the said George Hobart and Mary Walsh, two Third. 
of the parties mentioned in the said indenture, were^ 
Aordy after the date thereof duly married, and that 
there is no issue of tiie said marriage. That the said 
Geofge Hobart, on or about the sixth day of April, in 
the present year 1843, in pursuance of the agreement^ 
and intention in the said indenture mentioned, sold and 
disposed of the said commission therein referred to;- 
that such sale realised in the whole the sum of nine 
thousand pounds; to wit, the sum of four thousand' 
four hundred and twenty-five pounds, which was stand*' 
ing, at the death of the said deceased, to his credit at 
Messrs. Barclay and Company's, and the sum of four- 

KK 2 



500 TESTAMENTARY CAUSES. 

thousand five hundred and seventy-five pounds^ a 
balance of which and certain pay, amounting to the 
sum of four thousand one hundred and twenty-four 
pounds was standing, at the death of the said deceased, 
to his credit at Messrs. Hopkinson and Company's, 
army agents ; and this was and is true, and the party 
proponent doth allege and propound as before. 

Fourth. That about six months prior to the death of the said 

deceased he was attacked with an affection of the heart; 
that about six weeks before his death the symptoms of 
such complaint increased, and assumed an alarming 
appearance, although the said deceased was sometimes 
apparently better; that, about ten days before his 
death, the said deceased expressed his intention of 
going abroad at some future time ; and this was and is 
true, and the party proponent doth allege and propound 
• as before. 

Fifth. That on the evening of the ninth day of May last, 

the said deceased being then confined to his bed-room, 
owing to his indisposition, in the next preceding article 
mentioned, suddenly, to wit, at about nine o'clock, 
evinced and expressed great uneasiness, and desired pen, 
ink, and paper to be brought to him, declaring that he 
would make his will that night, or words to that very 
effect; that the same having been so brought to him, 
and a table placed by his side, he, the said deceased 
being then of the age of twenty-one years and upwards, 
and of sound and cUsposing mind, memory, and under- 
standing, and having a mind and intention finally to 
setde hb afiairs and to make and duly execute his last 
will and testament, with his own hand drew up and re- 
duced into writing the very paper writing or will pleaded 
and exhibited in this cause, on the part and behalf of 



TESTAMENTARY CAUSES. 501 

the said Mary Hobart^ widow, and now remaining in 

the r^istiy of this court, beginning, ending, and sub* 

scribed as aforesaid; and after he had so drawn up the 

said will, he set and subscribed his name at the foot or 

end thereof in manner and form as now appears thereon, 

and made or acknowledged such signature, and also ac« 

knowledged and declared the siud paper writing to be , 

and contain his last will and testament in the presence 

of several witnesses present at the same time, two of 

whom, at his special request, respectively attested and 

sabsdibed the said will, in the presence of the said 

testator and of each other as witnesses of the due 

execution thereof, in manner and form as now appears 

thereon; that the said testator gave, willed, devised, 

bequeathed, disposed, and did in all respects as in the 

said will is contained ; and this was and is true, and the 

party proponent doth allege and propound as before. 

That whilst the said testator was in the act of writing Sbith. 
the said will, he exclaimed, addressing himself to Geoige 
Matthew Ryder, one of the attesting witnesses to the 
said will, '^This is a funny will, so many person9 
present, or so many persons watching,'^ or to that or 
die like effect. That when Thomas Akehurst, the other 
attesting witness, had subscribed his name to the said 
win, the said deceased inquired whether it would not be 
better tiiat the said Thomas Akehurst should also write 
his place of residence? adding, '^ There is no telling 
where he will be when the will, (meaning the paper 
writmg now propounded,) is opened.^' That the said 
deceased also immediately afler the execution of the 
said win expressed a wish to the said George Matthew 
Ryder to be buried, in case of his death, at the cemetery 
at Kensal Green ; that after the execution of the said 



f02 TESTAMENTARY CAUSES. 

win, the symptoms of the sud complaint became more 
unfavburaUey and at about eleven o'clock the same 
evening the said deceased, when attempting to walk 
across the room, suddenly dropped down and expired ; 
jEtnd this was and is true, and the party proponent doth 
allege and propound as before* 

Seventh. . That the said deceased, as well at and during all and 
singular the premises in the two next preceding artides 
pleaded, as also before and up to the time of his deafli. 
Was of sound and perfect mind, memory, and under^ 
standing ; talked and discoursed rationally and sensibly, 
and well knew and understood what he said and did, 
and what was said and doQe in Ms pjresence, and was 
^y capable of making and executing his last will and 
testament, and of doing any other serious or rational 
act of that or the like nature requiring thought, judg- 
ment, and reflection $ and this was and is true, and the 
party proponent doth allege and propound as before. 

Eightb. • That the fitiher and mother of the said deceased had 
lived separate and apart from each other for many 
years ; in fact, from the time when the said deoedaed 
fras only seven years of age ; and the deceased had 
never any communication with his father from that time 
until the death of the deceased, except in tiie way of 
business and through the intervention of professipnal 
agents $ and this was and is true, and the party pro- 
ponent doth allege and propound as before. 

Ninth. That all and singular the premises were and are tme^ 

public, and notorious, and so forth. 



TESTAMENTAKY CAUSES. ^03 



Allegation. 

That the said Taver Penny, the testator in thiscausei AUeffatiou 
being.of sound and dii^osing mind, memory, and un* execution of 
derstanding, and having a tnind and intention to make a will and 

otli6r cir* 

and execute his last vrWi and testament in writing, did cunutances* 
give directions and instructions for the making and First 
preparing the same ; and that, pursuant to and in ao« 
oordance with such directions and instructioiis, the very 
will now remaining in the r^stry of this court, b^in« 
ning, ending, and subscribed as hereinbefore recited and 
pleaded and exhibited in tiiis cause on the part and 
behalf of the said Elizabeth Turner, widow, was drawn 
up and reduced into writing ; and tiiat after the same 
bad been so drawn up and reduced into writing, the 
same was read over, audibly and distinctly, to or by the 
said testator, who well knew and understood the con- 
tents thereof, and liked and approved of the same, and 
foqyressed his good liking and approbation thereof, and 
in testimony of such his good liking and approbation of 
his said will, he, the said testator, did, on or about the 
taid fifth day of April, in the year of our Lord one 
thousand seven hundred and ninety-two, set and sub- 
scribe his name thereto, in manner and form as now 
appears thereon, and did seal, publish, and declare the 
same as and for his last will and testament in the pre- 
sence and hearing of several credible witnesses, three of 
whom in his presence, at his request and in the presence 
<^ each other, did severally set and subscribe their 
names thereto in manner and form as now appear 
thereon*. And the party proponent doth further allege 
s^d propound that the said testator did not of his said 



501 



TESTAMENT ARY CAUSES. 



will name or appoint any executor^ but did themn 
name his mother, Mary Penny, (who died in his life- 
time,) universal legatee for life, and after her decease 
gave and devised all his estates and property to be 
divided amongst his three sisters, Jane Stevens, (who 
also died in his lifetime,) and the said Elisabeth Tamer, 
and Harriet Penny, or their children, in such 'propor- 
tions as his said mother shoidd appoint by her last will 
and testament, or by any deed in writing made by her 
in her lifetime ; and did g^ve, will, devise, bequeath, and 
do in all things as in the said wiU is contained, and was, 
at and during all and singular the premises, of sound, 
perfect, and disposing mind, memory, and understand- 
ing, and talked and discoursed rationally and sensibly, 
and well knew and understood what he said and did, 
and what was said and done in his presence, and was 
fully capable of giving instructions for and of making 
and executing his last will and testament, and of doii^ 
any other serious or rational act of that or the like 
nature, requiring thought, judgment, and reflection. 
And this was and is true, and so much the said Harriet 
Penny, spinster, the other party in this cause, doth 
know or hath heard, and in her conscience believes and 
hath confessed to be true ; and the party proponent 
doth allege and propound everything in this and the 
subsequent articles contained jointiy and severally. 
Second. That the signature or subscription ^'Taver Penny ** 

appearing set and subscribed to the said will pro* 
pounded in this cause, was and is of the own proper 
hand-writing and subscription of the said Taver Penny, 
the deceased in this cause, and is so well known or be^ 
lieved to be by divers persons of good character, credit, 
and reputation, who have firequ^ntiy seen the said Tsver 



TESTAMENTARY CAUSBa. 505 

Penny write and subscribe bis name to writings, and 
who have thereby or by other means become well ao- 
qoab^ with the manner and character of his hand* 
voting and subscription ; and this was and is true, and 
th9 party proponent doth allege and propound aa 
before* I 

That Thomas Rodber^ Esquire, one of the subscribed Third, 
witnesses to the said will pleaded and propounded in 
tliis causey was a person of independent fortune, residing 
at Weymouth, in the county of Dorset, and departed 
this life on or about the day of March, in the 

year of our Lord one thousand eight hundred and 
thirty-four, and was buried on the twenty-first day of 
the said month of Mardi, in the said year, in the 
burial-ground or in a vault belonging to the parish 
church of Radipole, in the said county of Dorset, and 
that an entry of such burial was duly made in the 
raster-book of burials kept in and for the said parish 
for the said year; and this was and is true, and the 
party proponent doth all^ and propound as before. 

That, in supply of proof of part of the premises Fourth, 
pleaded and set forth in the next preceding article, and to 
ail other intents and purposes in the law whatsoever, the 
par^ proponent doth exhibit and hereto annex, and 
pray may be here read and inserted and taken as part 
and parcel hereof a certain paper writing now nuurked 
with the letter A, and doth allqge and propoimd the 
same to be and contain a true copy of the entry of the 
burial of the said Thomas Rodber, as mentioned in the 
said next preceding article. That the same hath been 
feithfully extracted from the register-book of burials 
^[>t in and for the said parish of Kadipole, in the said 
county of Dorset, and hath been carefully coUated and 



606 TESTAMENTARY CAUSES. 

examined vAih the origiiud entry now remaoimg 
therein and hath been found to agree therewith* That 
all and singular the contents of the said exhibit were 
and are true. That all things were so and had done as 
are therein contained; and that ^ Thorny Rodbcr,^ 
therein mentioned^ and '' Thos. Rodber^" one of tiie 
sabscribed witnesses to the execution of die said last 
will and testament of the said Tayer P^nny, the testa- 
tor in this cause, deceased^ was and is one and the same 
person and not divers ; and this was and is true, and 
the party proponent doth allege and propound as 
before. 

Fifth. That the name and words ^ Thos. Rodber/' appear- 

ing set and subscribed as a witness at the foot of the 
said last will and testament of the said deceased pro- 
pounded in this caus^ were and are of the own propa 
hand-writing and aubscription of the aforesaid Thomas 
Rodber, deceased, and are so well known or believed to 
be by divers persons of good character, credit, and 
reputation, who hare frequently seen him write and 
jsubscribe his name to writings, and who have thereby, 
or by other means, become well acquainted widi the 
manner and character of his hand-writing and subscrip- 
tion ; and this was and is true, and the party propo- 
nent doth allege and propound as before. 

Sixth. That the said Thomas Bodber was a parson of good 

character, credit, anc^ reputation, and would not have 
set and subscribed his name aa a witness of the exe- 
cution of the said will of the said deceased by him or 
any other instrument or document, unless the person 
executing the same had been of sound mind, memory, 
and understanding, and had duly executed Uie same in 
his -presence; and that for and as such a person he, the 



T£8TAMBHTARY CAUSES, 607 



said Thomas Rodber, was. always accounted, 

and taken to be by and amongst his neighbours, friends, 

aoquaintanoes and others; and this was and is true^ 

iind the party proponent doth allege and pvopoond as 

before. 

. That William Brown, one other of Ab subscribed Serentb. 

witnesaes to the said will, was a merdnat residing at 

East Sheen, in the parish of Mortlake, in the county of 

Surrey, and departed this life on or about the 

day of July, in the year of our Lord one thousand 

eight hundred and three, at East Sheen aforesaid, and 

\ras buried on the twenty-second day of the said month 

of July in the said- year in the burial-ground or in a 

?ault belon^ng to the parish church of the said parish 

of Mortlake, and that.an entry of such burial was duly 

made in the regmter-book of burials kept in and for the 

said parish for the said year ; and this was and is tmei 

and the party proponent doth allege and propound as 

before* 

. That in supply of proof of part of tin premiaes Eighth. 

{Steaded and set focth in the next preceding article, iwd 

to all other intents and purposes in the law whatsoever, 

the party proponent doth exhibit and hereto annex and 

pray may be here read and inserted and taken as part 

and parcel hereof a certain paper writing now marked 

kritb the letter B, and doth allege and propound the 

same to be and contain a true copy of the entry of the 

bnridi of the said William Browne as mentioned in the 

said next preceding article* That the same hath been 

fiiitfafully extracted from the register«book of burials 

kept in and for the said parish of Mortlake, in the 

county of Surrey, and hath been carefully collated and 

examined with the original entry now remaining 



SOB TEST/kMEMTARY CAUSES. 

therein, and hath been found to agree therewith. That 
all and singular the contents of the said exhibit were 
and are true. That all things were so had and done as 
are therein contained^ and that ^li^^lliam Browne ** 
therein mentioned and ^ Wm. Browne *^ one of the 
JBubscribed witnesses to the execution of the said last 
will and testament of the said Taver Penny, tiie testa- 
tor in this cause, deceased, was and is one and the 
same person and not divers ; and this was and is tm^ 
and the party proponent doth allege and propound as 
before. 

Ninth. That the name and words '^ Wm. Browne ^ 

appearing, set, and subscribed as a witness at Ae 
foot of thesaid last will and testament of the 
said deceased propounded in this caus^ were 
and are of the own proper handrwriting and sab« 
scription of the aforesaid William Browne, deceased, 
and are so well known or beUeved to be by divers 
persons of good diaracter, credit, and reputation, who 
have firequentiy seen him write and subscribe his name 
to writings, and who have thereby, or by other means, 
become well acquainted with the manner and character 
of his hand-writing and subscription; and this was and 
is true, and the party proponent dotii all^ and pro- 
pound as before. 

Tenth. That the said William Browne was a person of good 

character, credit, and reputation, and would not hate 
set and subscribed hb name as a witness of the execa* 
tion of the said will of the said deceased by him or 
any other instrument or document, unless the person 
executing the same had been of sound mind, memory, 
and understanding, and had duly executed the same in 
Iiis presence; and that for and as such a person he, the 



TCfiTAMEHTARY CAUftBS. 509 

said William ^owne^ was always accounted, reputed, 
and taken to be by and amongst his ne^hboura, 
fiseads^ acquaintance, and others ; and this was and is 
troe, aud the party proponent doth all^;e and propound 
a»b«fore» 

That John Herbert Browne, the other subscribed Elleventh. 
vitoess to the said will, was a merchant residing at 
East Sheen, in the parish of Mortlake, and county of 
Surrey aforesaid, and departed this life on or about 
Uie day of February, in the year of our Lord 

one thousand eight hundred and thirty-three, at East 
SheoQ aforesaid, and was buried on the twenty^sixth 
day of the said month of February in the said year, in 
tlic burial-ground or in a vault belonging to the parish 
dnueh o£ Mortlake, in the said county of Surrey, and 
that an entry of such burial was duly made in the 
raster-book of burials kept in and for the said parish 
for the said year ; and this was and is true, and the 
party proponent doth all^ and propound as before. 

That, in supply of proof of part of the premises pleaded Twelfth, 
and set forth in the next preceeding article, and to 
bU other intents and purposes in the law whatsoever, 
the party proponent doth exhibit and hereto annex and 
pray may be here read and inserted and taken as part 
^d parcel hereof, a certain paper writing now marked 
with the letter C, and doth all^e and propound the 
same to be and contain a true copy of the entry of the 
horial of the said John Herbert Browne as mentioned 
in the said next preceding article: that the same hath 
haen faithfully extracted from the register-book of 
hurials kept in and for the said parish of Mortlake, in 
the county of Surrey, and hath been carefully collated 
^ examined with the original entry now remaining 



5ia 



TB8TAHENTART CAUSES; 



Thirteenth. 



Fourteenth. 



therein, and hath been found to agree therewith: that 
all and singular the contents of the said exhibit were 
and are true: that aU things were so had and done as 
are therein oontained> and. that ^^ John Herbert 
Browne '^ therein mentioned and ^ J. H. Browne/' one 
of the subscribed witzieases to the execution of the said 
hst will and testament of the said Taver Penny, the 
testator in thb cause, deceased, was and is one and the 
same person and not divers; and this was and is true, 
and the party proponent doth allege and propound as 
before. 

That the letters and name ^ J, H* Browne '* appear- 
ing set and subscribed as a witness at the foot of the 
said last will and testament of the said deceased pro* 
pounded in this cause^ were and are of the own proper. 
hand*writing and subscription of the aforesaid John 
Herbert Browne, deceased, and are so wdl known oc 
belieyed to be by divers persons of good character, 
credit, and reputation, who have firequendy seen him 
write and subscribe his name to writings, and who have 
thereby or by other means become well acquainted with 
tiie manner and character of his handrwriting and sub- 
scription; and this was and is true, and the parly pro- 
ponent doth allege and propound as before. 

That the said Jcdm Herbert Browne was a person of 
good character, credit, and reputation^ md would not 
have set and subscribed his name as a witness of flie 
execution of the said wiU of the said deoeaaed by him, 
or toy other instrument or document, unless the 
person executing the same had been of sound mind; 
memory, and understanding, and had duly executed the 
same in his presence; and that for and as such a 
person he the said John Herbert Browne was alFays: 



TESTAMENTARY CAUSES. 511 

aoooonted, reputed, and taken to be by and amongst 
his neighbours, friends, acquaintance, and oihers ; and 
this was and is true, and the party proponent doth 
allege and propound as before. 

T%8t the said Tav^ Penny, the testator in this cause. Fifteenth. 
<ieparted this life on the sixth day of November, in the 
year of our Lord one thousand eight hundred and 
forty-one, a bachelor, without a parent, leaving behind 
him the said Elizabeth Turner, widow, and Harriet 
Fenny, spinster, the respective parties in this cause, his 
nataial and lawful sisters and only next of kin, and the 
only persons who would have been entitled in distribu- 
tion to hb personal estate and effects in case he had 
died intestate : and that in the month of December, in 
the said year, the said Elizabeth Turner and Harriet 
Penny, under a belief that the said deceased had died 
intestate, applied for and obtained letters of administra- 
tion of an and singular the goods, chattels, and credits 
of the said deceased to be committed and granted to. 
them, by the authority of this court, as by the acts and* 
records thereof, to which the party proponent prays 
leave to refer^ doth appear ; and this was and is true^: 
and the party proponent doth allege and propound as> 
before. 

llat in the month of April, in the present year one Sixteenth, 
thousand ei^t hundred and forty-two, the will of the 
said deceased, propounded in this cause, having been- 
cliscovered among some of the papers of the deceased,; 
of moment and concern, by William Manfield, of Dor- 
chester, in the said oounty of Dorset, the solicitor of 
the said Harriet Penny, he the said William Manfield,. 
by her direction or with her privity and consent, com- 
Bnmicatad such &ct to the said Elizabeth Turner, ia 



512 TESTAMENTARY CAUSES. 

order that probate of the said will might be obtained 
in this court, and a reduction of duty secured thereby; 
and this was and is true, and the party proponent dotb 
allege and propound as before. 
SeventeeDth. That the will of the said Taver Penny propounded 
in this cause, is in the words or to the effect following, 
^ I, Taver Penny, of the Royal Navy, do declare this 
my last will and testament, and do hereby give and 
devise unto my mother, Mary Penny, for her natural 
Kfe, all estates real and personal that 1 may be in pos^ 
session of at the time of my decease, or be entitled to 
in reversion, as also all odier property whatsoever : and 
at the decease of my said mother I do will and devise 
that all the said estates and property shall be divided 
amongst my three sisters, Jane Stevens, Elizabeth Tur- 
ner, and Harriet Penny; or their children, in sudi pro- 
portions as she my said mother shall appoint by her 
last will and testament, or by any deed in writing made 
by her in her lifetime. Given under my hand and seal 
tliis fifth day of April, one thousand seven hundred and 
ninety-two/^ That Mary Penny, the mother of the 
said deceased, the imiversal legatee for life, with power 
of appointment therein-named, departed this life in the 
lifetime of the said testator, and that Jane Stevens, the 
sister of the said testator, therein also mentioned, also 
'departed this life in the lifetime of the said testator 
without leaving any issue, and that Elizabeth Turner, 
the sister of the said deceased, one of the parties in 
this cause therein also mentioned, has two children 
living. *niat tlie parties in this cause having obtained 
legal advice as to the construction and operation of the 
said will, and having been advised that, by virtue of the 
termn of the same and under tiie circumstances herein- 



TB8TAMBNTART CAUSES. 5)9 

before' pleaded, tiie said Elisabeth Turner, Hacriet 
Penny, and the two children "of the said Elizabeth 
Turner, had severally and respectiyely acquired vested 
interests, each in one-fifth part or share of the estate 
and effects of the said testator, and that, as to the 
remaining fifth part or share, the testator was dead 
intestate, iuid that the same was become divisible in equal 
shares between the said Elizabeth Turner and Harriet 
Penny, as his only next of kin, a monition was issued 
under seal of this court against the said William Man* 
field, and duly served upon him to bring the said will 
into and to leave the same in the registry of this cour^ 
and that accordingly, on the third session of Trimty 
Term, to wit, Tuesday, the fourteenth day of June, 
now last past, the said William Manfield, in obedience 
to the said monition, brought the said will into and 
left the same in the registry of this court accordingly 
and that the letters of administration of the goods • of 
the said deceased theretofore erroneously applied for 
and obtained by the said Elizabeth Turner and Harriet 
Penny, as hereinbefore pleaded, were then also brought 
into and left in the r^istry of this court ; and this was 
and is true, and the party proponent doth allege and 
propound as before. 

lliat all and singular the premises were and are true^ Eighteenth. 
and so forth. 

Allegation propoundifig a Will in its original 

State. 

That the said original will of the said William Allegation 
Brooke, Esquire, the testator, pleaded and propounded willin its 
in this cause on the part and behalf of the said John l^^^^ 

L L 



514 TESTAMENTARY CAUSES. 

Pint. Reeve, was drawn up and prepared from direcdons or 

instructions given, by him, the testator, and the draft 
thereof having been settled with him, the said original 
will was ingrossed or copied therefrom for execation; 
and the same having been read over to or by him, and 
approved of by him, was, on or about the fifteenth day 
of July, in the year 1837^ bemg the day of the date 
thereof duly executed by him, the testator, in die pre- 
sence of divers credible witnesses, three of whom duly 
attested the execution thereof as subscribing witnesses 
thereto ; and that he, the said testator, did, in and by 
his said will, nominate, constitute, and appoint the ssdd 
John Reeve, (his nephew,) and the said Edmund Kent, 
(then the younger,) the parties in thb cause, executors, 
and did give, will, bequeath, dispose, and do in all things 
as was then in the said will contained; and this, &c. 

Second. That the said testator did, in and by his aforesaid 

will, pleaded and exhibited in this cause, (amongst 
other things,) empower each of the several persons 
thereby respectively made tenants for life c^ hb manors 
and freehold hereditaments thereby devised, to appoint, 
under certain limitations therein mentioned, to the use 
of the woman with whom such tenant for life might 
intermarry, for the Ufe of such woman respectiyeiy, 
and, as her jointure, any annual sum or yearly rent- 
charge not exceeding, in the whole, the sum of two 
hundred pounds, to be yearly issuing out of his ma- 
nors and freehold hereditaments, with a proviso that 
his said estates should noty under the said power, be at 
any one time subject to the payment of more tiuin the 
annual smn of four hundred pounds for jointures ; and 
the said testator did, by his said will, dedare that if, by 
exercise of such powers, his said manors and ficehold 



TESTAMENTARY CAUSES. 515 

hereditaments should be charged with a greater sum for 
jointures, in the whole, than the said sum of four hun- 
drcKi pounds, then the payment of the sums occasion- 
ing such excess should, during <ihe period of such 
excess, be sufl|)ended; and the party proponent doth 
allege and propound that the said power of appoint- 
ment was contained iii the said will at the time of the 
execution thereof, and remained unaltered in all re- 
spects until the same wis altered by the said testator 
in respect to the amount of the jointures so made charge- 
able on his manors and freehold hereditaments, at the 
time and in manner hereinafter mentioned; and this, &c. 

That in part supply of proof of the premises in the Third. 
next preceding article mentioned, and to all other 
intents and purposes in the law whatsoever, the party 
proponent craves leave to refer to a certain paper 
writing now remaining in the registry of this court, 
annexed to an affidavit of Martin Bambridge the 
younger, and marked with the letter B, and doth allege 
and propound the same to be the original draft from 
which the said will, pleaded and propounded in this 
cause, was ingrossed or copied for execution; and that 
the said draft is now (save in respect to the maridibig 
thereof, and the names of the attesting witnesses^ and 
certain other additions subsequentiy written at the end 
ther^f ) in the same plight and condition as it was 
when tixe said will was ingrossed or copied therefrom^ 
and .the party proponent doth allege and propound that 
the. said will was, previous t9 the execution thereof, col- 
lated with the said drafit^ and found to agree therewiih 
in all respects; and that the said draft, ;and, in parti- 
cular, such part of the same (to wit, the tenth and 
eleventh aheetis thereof) which contains the. aforesaid 

L L 2 



^16 TESTAMENTARY CAUSES. 

power of appointment to the tenants for life for the 
benefit of their respective wives, was and is a true and ex- 
act counterpart of the said will, as it appeared at the time 
it was executed by the said testator on the said fifteenth 
day of July, 18379 as hereinbefore pleaded; and this, &c. 
Fourth. That, subsequently to such the execution of Ws said 

will, the said testator, having a mind and intention to 
alter the amount of the annual jointure thereby, as 
aforesaid, 4 made chargeable on his said manors and 
hereditaments for the wives of the respective tenants 
for life thereof, did, on or about the twenty-sixth day 
of June, in the year 1838, with his own hand, alter 
the same from two hundred pounds to one hundred 
pounds, by erasing with a knife, in the twenty-third 
line of the sixth sheet thereof, the word ^ two," in the 
words two hundred pounds, the amount of such pro- 
posed annual jointure or rent-charge, and by writing 
Hie word **one'* in the place thereof upon such 
erasure, in manner as now appears in the said will; 
and he, the said testator, did, at or about the same 
time, with his own hand, alter the amount of the sum 
to which the whole of the said annual jointures or rent- 
charge to be at any one time in force under and in 
virtue of the said power were limited from four hun- 
dred pounds to two hundred pounds, by erasing with a 
knife, in the first and also in the fifth lines of the 
seventh page of his said will, a portion of the letter 
** F,** being the initial letter of the word " four,** in 
such' sum of four hundred pounds, occurring in the said 
lines respectively, and thereby converting such initial 
letter into the letter ^^ T,*' and also by erasing, with a 
knife, the letters ^' our,** the other letters of the said 
words *^four,** and **four,** and by writing in the place 



TE8TAMBMTARY CAU8S8. 517 

ttereofy upon such erasures^ the letters '^ wo/' after the 
said letter ^^ T '^ so altered in the said lines respectively^ 
in manner as also appears in the said will; and the 
party proponent doth further allege and propound that 
the said testator^ after he had so made the said alten^ 
tions in his said will^ did^ in token of his approval 
thereof^ and with an intention of giving effect thereto^ 
at or about the same time^ with his own hand, imder 
the names of the subscribing witnesses, in the last 
sheet of his said will, write and subscribe with his 
name the words or memorandum following, to wit : — 
^^The erasures in the twenty-third line of the sixth 
^leet, the word 'two' taken out, and the word 
'one' put in its place; and, in the first line of the 
seventh sheet, the word 'four' taken out, and the 
word 'two^ put in its place.; and, in the fifth line of 
the seventh sheet, the word ' four' taken out, and the 
word ' two ' put in its place, — ^By me, Wm. Brooke,— 
June the twenty-sixth, one thousand eight hundred and 
thirty-eight,*' in manner as now appears in the said 
will; but tiie party proponent doth allege and pro- 
pound that the said testator did not make the said 
alterations in lus said will, nor write and sign the afore- 
said words or memorandum at the end thereof in the 
presence of two or more witnesses, and that, by reason 
thereof, the said alterations are invalid, and of no effect 
in law ; and this, &c« 

That tiie letters "T" and «T," now appearing as Fifth, 
the initial letters of the said respective words "Two'' 
and " Two," so substituted for the said words " Four " 
and " Four," in the said first and fifth lines of the said 
seventh sheet of the said wiU, wd which formed part of 



518 TESTAMENTARY TAUSEf* 

the letters "F^^ and «F'' inthe words "Four'* and 
'^ Four/' originally written in the said lines, and wfakh 
were afterwards conyerted from such letter F^bytbe 
erasure of the cross stroke thereof^ into the letter T^ as 
in the next preceding article is pleaded, were and aie 
of the proper handwriting of Martin Bambrid^, the 
younger, by whom the said will was ingrossed or 
copied for execution; and that Uie a&resaid word 
'^ One/* now appearing written on an erasure in Ae 
twenty-third line of the said sixth sheet of the said 
will, and the letters "wo** and "wo** also appearing 
written respectively on erasures, and being the other 
letters of the said words "Two** and "Two** in the 
said first and fifth lines of the said seventh sheet 
thereof; and also the whole body, series and contents 
of the aforesaid words or memorandum appeariif 
written under the names of the subscribing witnesses 
in the last sheet of the said will, and the names and 
date, " Wm. Brooke, June the twenty-^sixth, oat thou- 
sand eight hundred and thirty-eight,** "written and 
subscribed as aforesaid at the foot of such words a 
memorandum, were and are of the proper handwriting 
and subscription of the said William Brook^ the tes- 
tator in this cause, and so well known or believed to 
be by divers persons of good faith and credit, who are 
well acquainted with his manner and character of hand* 
writing and subscription, firom having fineqtiently seen 
him write, and write and subscribe his name to ^mt- 
ings, or by other means ; and this, &c« 
Sixth. Ttat the said William Brooke, the testator, was, at 

and during all and singular the premises in the preced- 
ing articles of this allegation pleaded, of sound and 



TESTAMENTARY CAVSES. 619 

dispoBbg Biindy memory^ and miderstan<Bng, and fully 
capable of doing any serious or rational act requiring 
thought, judgment, and reflection ; and this^ &c. 

That all and singular the premises were and are truey Seventh. 
andsoibrtii. 



AUegatian propoumUng a Will in its present 

State. 

That WiUiam Brooke, the testator in this cause, after AHegatiori 
he had executed his vnH, bearing date the fifteenth day a'wfn^n iu^ 
of July, one thousand eight hundred and thirty-seven^ present 
pleaded and referred to m the all^ation given in on ^^ 
the behalf of John Brooke, heretofore Reeve, one of 
the parties in this cause, bearing date the twenty-fourth 
day of January, one thousand eight hundred and forty, 
having a mind and intention to make an alteration 
dierein, with respect to the amount of the jointures 
thereby ehargeable on his manors atid hereditaments, 
on or about the twenty-sixth day of June, one thou« 
aand eight hundred and thirty-eight, erased, or caused 
to be erased, the word '^ Two,'^ in the twenty-third line , 

of die sixth sheet of the said will, and, in the place of 
die said word ^ Two," wrote the word ** One'* in the 
said line ; and that he ako, at or about the same time, 
erased, or caused to be erased, partially, in the first 
and fifdi lines of the seventh sheet of the said will, 
the word ^^Fourf* and, by altering the letter ^F'' in 
the said word, and otherwise writing diereon, converted 
the said word into the word '^ Two ;" and, by the said 
three alterations, he, the said testator, reduced the join- 
tures by his said will made chargeable on his said 



5S0 TESTAMENTARY CAI^SSS. 

manors and hereditaments to the annual smti of one 
hundred pounds^ and limited the amount for which kis 
said estates should at any one time be chargeiJile od 
$ooount of such jointares to the annual sum of twa 
hundred pounds; and die party proponent idoth farther 
allege and propound that the said testator, after he had 
made the said alteraticms, in token of his approval 
thereof, and wiA an intention of giving effeet thereto, 
at or about the same time, with his own hand, under 
the names of the subscribing witnesses, in the last sbeet 
c^ his said will, wrote the words or memorandum fol- 
lowing, to wit :— '^ The erasure in the twenty-thiid Uae 
of the sixth sheet, the word ^ Two' taken ou^ and the 
word ^ One' put in its place ; and, in the first line of 
tiie seventh sheet, the word ^ Four' taken out, and the 
word 'Two' put in its place; and, in the fifth lineof 
^e seventh sheet, the word * Four' taken out, and tiie 
word • Two ' put in its place, — ^By me, Wm. Brooke,— 
June the twenty^sixth, one thousand eight hundred and 
thirty«-eight ;" and signed his name thereto in manner 
as now appears in the said will ; and the party pro- 
ponent doth expressly allege and propound that tbe 
said testator was, at and during all and singular the 
premises, of perfect, sound, and disposing mind, 
memory, and understanding, and was fiiUy capable of 
making or altering his said will, and of doing any 
serious or rational act requiring thought, judgment, and 
reflection ; and the party proponent doth further ex- 
pressly aHege and propound, that tiie aforesaid wiD 
hating been executed prei4ously to the firM day of 
January, one thousand Mght hundred and thirty-d^^ 
tbe aforesaid altemtions therein are valid and eflbotoal 
in law, to all intents and purposes; and this, &c» 



TB8TAMBI1TARY CAU8B9U 5f I 

r That ibe letters ^'T^^ and ^'T/' now appearing as Second. 
die initial letters of the said respective words '^ Two'' 
ihmI '^Two/' so substituted for the said words ^ Four'' 
and ^ Four/' in tiie said first and fifth lines of the said 
9e¥enth sheet of the said will, and which formed part 
of the lettera •^F" and '*F/' in the words «Four/' 
Md '^ Four/' originally written in the said lines, and 
which were afterwards converted firom audi letter *' F/' 
b]^ the erasure of the cross stroke therec^, into the 
ktitter ^^ T," as in the next preceding article is pleaded* 
were and are of the proper handwriting of Martin Bam* 
bridge, the younger, by whom the said will was en«r 
grossed or copied for execution ; and that the aforesaid 
word ^ One," now appearing written on an erasure in 
the said twenty-third line of the said sixth sheet of the 
said wiQ, and the letters '^ wo" and " wo," also appear- 
ing written respectively on erasures, and being the 
other letters of the words ^^Two" and <<Two," in the 
said first and fifth lines of the said seventh sheet 
theieof, and also the whole body, series, and contents 
of the aforesaid words or memorandum appearing 
written under the names of the subscribing witnesses 
in'the last sheet of the said will, and the names and 
date^ ^' Wm« Brooke, June the twenty-sixth, one thou-' 
sand eight hundred and thirty-eight," written and sub-, 
seabed as aforesaid at the foot of such words or 
momoiandum, were and are of the proper handwriting 
and /rabscription of the said William Brooke, the tes- 
tator .in this cause, and are so well known cnr believed 
to be by difeni persons of good fiuth, (^edii^aad repy^t 
tation) who are well acquainted with his manner aia^d 
qhiwiiat^ ol hwdwriting and subscription, irom having 



522 TESTAMENTARY CAUSES. 

Aeqnendy seen him write, and write and subscribe lus 
name to writings, or by other means; and this, &c. 
Tliird. That all and singular the premises were and aretne, 

public, and notorious, and thereof there was and is a 
public voice, fame, and report, of which legal proof 
being made, the party proponent prays that probate of 
the aforesaid last will and testament of the said Williani 
Brooke, the party deceased, bearing date the fifteenA 
day of July, one thousand eight hundred and Ihiitf* 
seven, as aforesaid, may be committed and granted 
according to law in its present state, and that otherwise 
right and justice may be efiectualiy done and adminis- 
tered to him and his said party in the premises. 

Allegation. 



Allmtlon That the said Reverend Henry Masterman, CHeA, Oe 
cial]ytiie"(Sr^ tcstator in this cause, bdng upwards of twenty-one 
cumBtaiicea years of age, and having a mindand intention tomakeand 
tion of a will« execute his last will and testament in writing, did wiA 
Pint. hb own hand write the very will pleaded and pro- 

pounded in this cause, on the part and behalf of the said 
James Atterton Uott, bearing date the eighth day of 
September, in the year of our Lord 1841, and b^inning 
and ending as aforesaid ; and he the said testatcMr well 
liked and approved of his said will ; and in testimony 
of such his good liking and approbation, subscribed the 
sanie at the foot or end, and that he so subscribed the 
said will in the presence of two witnesses present at the 
same time $ and the party proponent doth dJktgp and 
propound that, on the said eighth day of September, 
the said testator at about four o'clock in the afkemoon. 



TESTAMENTARY CAUSES. 523. 

caBed on Samuel Hopkins^ the (Nurkh derk of Milton 
Abbas aforesaid^ tHio waa at work as a tailor in his 
diop, with Henry Eaton, his son-^in-law, and said, ^^ I 
want to hinder you two for a short tkne, to come to my 
hoase to sign a paper for me,'' or to that very effect^ 
upon which the said Samuel Hopkins said, ^ We will 
come immediately.'' That the said testator then left 
and went to his own house ; that the said Samuel Hop^ 
kins and Henry Eaton shortly afterwards followed him, 
and well knowing the house, walked into the said tes-* 
tator's study, where they found him standing at his 
writing*desk, which was so placed on a small table near 
the wall that his back was turned towards them as they 
altered the room ; that on their entering the said room, 
the said testator turned round and said, ^Well> 
Mr. Hopkins, you are come i I want you to sign this 
paper for me." The said testator then turned round 
agam to his writing-desk, and still standing up, did 
something wi€h the paper, and, as it appeared to them, 
from Ins attitude and manner, that he was writing upon 
it That after a short interval, during which the said 
testator was so employed, he moved the paper from the 
desk, and put it on the table on which the desk was 
standing, and said, pointing with his finger to the bot- 
tom tiioreof, ^^ Sign your names here." That the said 
Samuel Hopkins then took the pen, which was in the 
ink bottie, and which apparentiy the said testator had 
been just using, and signed his name in the said testa- 
tot's presence, and in the presence of the said Henry 
Eafam, and the said Henry Eaton also signed his name 
in the presence of the said' Samuel Hopkins and of the 
said testator, but that the upper part of the said paper 
^v 80 folded or turned down as to conceal the writbg 



524 TBSTAMENTAllY CAUSB8, 

on the concluding part thereof, so that the aaid Samuel 
Hopkins and Henry Eaton could not see whether or na 
there was any signature or seal to it. That ihe said 
testator, on the same afternoon called on John Chaffey 
at the School House, and requested him toputhis name 
to the said paper, under those of the said Samuel Hop- 
kins and Henry Elaton, which he accordingly did; that 
the said paper was again so lidded or turned down as 
to conceal the writing on the conduding pert thereof, 
but neither the said Samuel Hopkins or Henry Eaton 
were present when this third person signed; and the 
said testator did in and by his said will n<Mninat^ con- 
stitute, and i^point the said James Atterton Uott one 
of the executors thereof, and did give, will, beq[Qeatb, 
dispose, and do in all things as in the said will is con- 
tained, and was at and during all and sipgulor the pre- 
mises of sound mind, memory, and understanding! and 
well knew and understood what he said and did, and 
what was said and done ia his presence, and was fully 
capable of making and executing his last will and testa- 
ment in writing, and of doing any other serious or 
rational act of that or the like nature, requiring thoqg^ty 
judgment, and reflection; and this, &g« 
Second. That the whole body, series, and contents of the said 

will beginning and ending as aforesaid, and the sub* 
scription ^ Henry Masterman,'' thereto set and sab- 
scribed, were and are of the proper handwriting and 
subscription of the said Henry Masterman, the deceased 
in this cause, and are so well known or beUeved totbe 
by divers persons of good fidth and credit^ who have 
frequently seen him write and subscribe his name, and 
are thereby become well acquainted with the manner 
and character of his handwriting and subscription > 



TS8TAMBNTARY CAUSES. 



535 



and this was aiid is trae^ public^ and notorious^ and 
the party proponent doth allege and propound as be- 
fore. 
Is the usual concluding article. Third. 



Allegation. 

Prerqgafive Court of Canterbury. AHegation 

On die ihinl session of Hilary Term, to wit, Friday, gJ^PX"*^^ 

the second day of February, 1844. stance of a 

wUl. 



A business of proving, in solemn 
fann of law, by good and suffi- 
cient witnesses, the last will and 
testament, bearing date in or 
about the month of November, 
1831, or the contents, sub- 
stance, or effect thereof of Jo- 
seph Humfrey, late of Upton, 
in the parish of Blewberry, in 
Ae county of Berks, promoted 
by Martha Humfrey, widow, 
die relict of the said deceased, 
and a legatee for life, named in 
die said will against Hannah 
Humfrey, spinster, Nathaniel 
Humfrey, Philip Humfrey, 
Phoebe Humfrey, spinster, 
Chraoe Humfrey, spinster, and 
"Mary Humfrey, spinster, the 
natural and lawftd and only 
dnldien of the said deceased, 
and together with the said Mar- 
tha Humfrey, the only persons 



On whichdayWills, 
in the name, and 
as the lawfrd proc- 
tor of the said 
Martha Hum- 
frey, widow, ex- 
hibited the oon<» 
tents or sub- 
stance or effect 
of the true and 
original last will 
and testament of 
the said deceased, 
bearing date in or 
about the month 
of November, 
1831, as embo- 
died or contained 
in an affidavit 
made and swom- 
to in this cause 
by the said Mar- 
tha Humfrey, wi» 



626 TESTAMBKTARY CAUSES. 



who would have been entitled 
in distribution to the personal 
estate and effects of the said 
deceased. 



dow, and John 
HnmfreyaiidDa- 
nielLouseley,and 
now TemmniTig m 
tiie i^btry of 
this court, the said true and original last will and 
testament of the said deceased haying been incau- 
tiously and unadvisedly destroyed by tiie said 
Martha Humfiey since the death of the sud de- 
ceased, and under tiiat denondnation^ and by all 
bettor and more effectual ways, means, and 
methods^ and to all other intents and purposes in 
the law, which may be most beneficial and effM- 
tual for his said party, said alleged, and inlaw 
articulately propounded, as follows ; to wit. 
First. That the said Joseph Humfrey, the testator m this 

cause, departed this life on the 21st day of November, 
1842, at the age of forty-seven years, or thereabouts, 
leaving him surviving the said Martha Humfiey, 
widow, his lawful relict, and Hannah Humfrey, spinster, 
Nathaniel Humfrey, Philip Humfrey, and Phoebe Hum- 
frey, spinster, now in tiieir minority, and Grace Hum- 
frey, spinster, and Mary Humfrey, spinster, nowin their 
in&ncy, his natural, lawfrd, and only children, respec- 
tively the only persons who would have been entitled in 
4iistribution to his personal estate and efiects in case he 
had died intestate ; that liie said testator, at the time of 
his decease, was seized or possessed of, or entitied to, 
freehold and copyhold property of the value of £15,000, 
or thereabouts, and personal estate of tiie amount or 
value of between £4,000 and £5,000 ; and this was and 
is true ; and so much Thomas Humfrey, the unde, and 
curator or guardian, lawfrdly assigned to the said minors 



TESTAMENTARY CAUSES. MJ 

and infants, the other parties in this cause, doth know 
or hath heard, and in his consdenee beheves and haUi 
confessed to be tnie; and the party proponent alleges 
and propounds everything in this and the subsequent 
articles of this allegation cited jointly and severally. 

That in or about the month of November, 1831, Second, 
being shortly after his recovery from an illness, the said 
testator with his own hand drew up and reduced into 
writing the very will, the substance or effect of which 
is set forth in a joint affidavit of the said Martha 
Hnmfrey, John Humfirey, and Dailid Louseley, now 
rRmaining in the registry of this court, and that after 
the said testator had so drawn and reduced the said 
w31 into writing, he duly executed the same; to wit, on 
die day in the month of November, 1831, on which it 
bore date, (but which is unknown to the party propo- 
nent,) in the presence of three or more credible wit- 
nesses^ who, or at least three of whom, to wit, Richard 
James, Thomas Pitt, and George Butler, respectively 
duly attested such the due execution thereof by the said 
testator; that the said testator, in and by his said will^ 
gave and bequeathed the whole of his estate and pro- 
perty, of' what nature or kind soever, to his brothers 
and brothers-ui-law> Thomas Humfrey, Job Louseley, 
John Humfirey, Daniel Louseley, and William Hum* 
frey, in trust, to sell and dispose of tiie same when his 
youngest child abould become of age, and to allow his 
wife, the inid Martha Humfrey, the annual sum of 
£200 for and during her life, and to divide the residue 
of his said property amongst all his children, but so 
that Ilia daughters should each have two-thirds only of 
the portions of eadi of his sons ; and that there was no 
executor named in the said will, nor any other legatee. 



528 TESTAMEKTART CAUSES. 

And the party proponent further allies and propoiUMls 
that the said testator was at and daring all and singolsr 
the premises of sound and perfect mind, memory, and 
understanding, talked and discoursed rationally and sen- 
sibly, and well knew and understood what he said and 
did and what was said and done in his presence, and 
was fully capable of making and executing his last will 
and testament, or of doing any other serious or radonal 
act of that or the like nature requiring thought^ judg- 
ment, and reflection ; and this, &c. 

Tliird. That the only property, (exclusive of personalty,) of 

which the said testator was seized when he made his 
aforesaid last will and testament, was a fineehold estate, 
situate at Upton aforesaid, which he had purchased for 
the sum of £6,500, or thereabouts, but that after he 
had so made the same, to wit, in the years 1834, 1836, 
1839, 1841, and 1842, or at some other time or times 
respectively, he acquired certain other estates, both 
freehold and copyhold, situate respectively at Upton 
and elsewhere, in the parish of Blewberry aforesaid, of 
the value of £9,000, or thereabouts, and, that at the time 
of his making the said will, his, the testator's hnaiji 
consisted of three children ; and this was, &c. 

Foarth. That £he sud testator became desirous of making and 

executing a new will, owing to the dicumstances in the 
next preceding artide pleaded, and that according^, on 
or about the I9th day of November, 1842, he, the 
testator, being then sick of the illness of which he 
shortly afterwards died, gave directions and instructions 
to his brother-in-law, Daniel Lousdey, to prepare a 
new will for him. That the said Danid Lousdey, from 
such directions and instruction, drew up the very paper 
writing now remaining in the registry of this court, 



USTAHBNTAEY CAU8B8. 529 



aiiBtted to tfae.ajEud Martha Humfrey's affidavit of 
scrspta madced No« 1^ and that the said testator^ on the 
SMueday^'duly signed the same in the presence of three 
witnesses. But the party proponent expressly ^Ueges 
and prqMumds that the said witnesses, instead of sub- 
scribing the said paper writing up stairs in the chamber 
where he, die testator, was lying ill in bed, inadver^ 
tentiiy ^gned it^ as attesting the testator's execution 
thficeoCiin a room down stairs, called the hall, into 
which it had been taken for their greater convenience 
in so doing, and wholly oi^t of the presence of him, the 
testator ; and, &c« 

That on the occasion of the testator giving instruc- Fifth. 
tions for, and afterwards signing the paper writing last 
afcnesaid, his true and original last will and testament, 
(and of which the substance or effect is pleaded and pro- 
poiindedin this cause,) was taken out of a drawer in his 
bedroom, wherein the same had been deposited by the 
said Martha Humfrey, (and who was then already well 
aware of its contents,) and by her produced and shewn 
to the said Daniel Louseley and John Hmnfrey, both 
ptto&kt on the occasion, and the former of whom then 
slowly and audibly read the same over to the latter and 
to the said Martha Humirey, whereby the substance or 
eflSact of the said will became well known, so as to be 
perfectly reooUected by each of the said persons re* 
spectively ; and the party proponent further alleges and 
propounds that the said will was neither then, nor at 
any time afterwards, in any manner cancelled or re- 
voked by the said testator ; and, &c. 

That after the said testator's true and original last Sixth. 
win and testament had been read over as aforesaid, it 
was replaced by the said Martha Humfrey in the 

MM 



530 



TESTAMKMtAllY CAI78B8. 



Seventh. 



drawer from which she had taken it, and from such 
time it remained therein, until about three monlhs after 
ihe testator's death, when (to wit some time in the 
month of February, 1843,) she the said Martha 
Himifirey, in the presence of her daughter, Hannah 
Humfirey, spinster, and at the recommendation of the 
said Daniel Louseley, (who with herself considered, 
though erroneously, the said will to haye been revoked 
by means of the paper writing mentioned in the fourth ar^ 
tide of this allegation,) incautiously destroyed the same. 
And the party proponent expressly alleges and pro* 
pounds that up to the time of such tiie destruction 
thereof, the said will was in the same entire state and 
condition in which it had been read over by the said 
Daniel Lousley to and in the presence of the said John 
Humfirey and Martha Humfrey, as pleaded in the 
next preceding article of the allegation; and this, &c 
That all, and singular, &c« 



Allegation pleading Substance of lost WiU. 



Allegation 
pleading sub- 
Btance of lost 
wiU. 



A business of proving in solemn 
form of law, by good and suffi- 
cient witnesses, the true and 
original last will and testament 
bearing date the 21st day of 
February, 1838, or a true copy, 
or the substance or effect 
thereof, of James 8 ■ . , 
late of , Esquire, de- 

ceased, pron^oted by Louisa 
M , spinster, the uni- 

versal legatee therein named. 



On which day. Ad- 
dams, in Uieoam^ 
and as the lawful 
proctor of the 
said Louisa M—y 
spinster, exhibit- 
ed the true copy 
or substance) or 
effect of the true 
and original last 
will and testa- 
ment of the said 



TESTAMENTARY CAUSES. 531 



against Mary Ann S- 



9 

widow^ the relict, sole execu- 
trix, and universal legatee 
named in a former will of the 
said deceased, bearing date the 
14ih day of April, 1835. 



deceased, bearing 
date the 21st 
day of February, 
1838, and which 
said copy or sub- 
stance, or effect 
of the said will, 
is in the words following, ^ I leave to Louisa 

M tlie whole of my property of which I 

am now possessed, both here and in England, 
dated in Paris, this 21st day of February, 1838,'' 

and thus subscribed or signed, '^ James S ^,'' 

now remainizig in the re^stry of this court, an* 
nexed to an affidavit of the said Louisa M 
as to scripts, marked with the letter A, (the said 
true and original last will and testament having 
been subsequently to the death of the said de- 
ceased, through inadvertence destroyed or so lost 
and mislaid that the same cannot be produced and 
exhibited in this court,) and under that denomina- 
tion and by all better and more effectual ways, 
means, and methods, &c« 

That the said James S , Esquire, the party in Fint 

this cause deceased, departed this life at the city of 
Paris, on the 21st day of February in the year 1838, of 
the age of forty years or thereabouts, leaving the said 
Mary Ann S , widow, his relict, and the sole exe- 
cutrix and universal legatee, named and constituted in a 
will by him made and executed on the 14th day of 
April 1835, as appeals by the same now remaining in 
the re^stry of this court, annexed to an affidavit of 

John 8 , Esquire, as to scripts. That the said 

deceased quitted England in or about the month of 

M M 2 



532 TBSTAMENTARY CAUSBfl. 

5 in the year , and traTeDedto 
various parts of the continent of Europe^ in the com- 
pany of the said Louisa M > party in this canse; 

and that they were residing togedier at a boaiding- 
honse^ situate No. 18^ in the Rue de Rivoli^ in the city 
of Pftris^ at the time of his decease, to wit, on the 
2l8t day of February, 1838, as aforesaid; and this 
was^ &c. 
Second. That on the said 21st day of Febrttary> in the said 

year 1838, the said James S , the testator m this 

cause, being very ill of the illness whereof he died, as 
aforesaid, and being desirous of making and execu- 
ting his last will and testament, gave directions and 

instructions to Michael C y Esquire, a gentleman 

with whom he had become acquainted from his resi- 
dence in the same boarding-house, to draw up a will 
for him, the testator, to execute. That accordingly Ihe 

said Michael C ^ from the said testator's own 

instructions and dictation drew up and reduced into 
writing the very will, a true copy or the substance or 
efiect whereof is exhibited and propounded in this 
cause, and which said will, when so drawn up and re- 
duced into writing by the said Michael C > was 
read audibly and distinctly to or by the said deceased, 
who liked and approved thereof, and in testimony of 
such his good liking and approbation, signed his name 
at the foot thereof, in the presence of divers credible irit- 
nesses, two of whom, both being present at the same timc^ 

to wit, the said Michael C >and B ■, 

Doctor of Physio, attested and subscribed the said will 
in the presence of him, the deceased. That the said 
deceased did give, will, bequeath, dispose, and do in aU 
things as in the said will is contained, and did theran 



TESTAMENTARY CAUSES. 533 

and thereby give the whole of the property of which 
he was possessed, both m France and England, to the 

said Louisa M > and was at and during all and 

singular the premises of perfect, sound, and disposing 
mind, memory, and understanding, talked and dis- 
oonrsed rationally and sensibly, well knew and under- 
stood what he said and did, and what was said and 
done in his presence, and was fully capable of giving 
instructions for and of making and executing his last 
will and testament in writing, or of doing any other 
serious or rational act of that or the like nature requir- 
ing thought, judgment, and reflection ; and this &;c. 

That immediately after the execution of the said will, Third, 
as ia the next preceding article of this allegation is 
pleaded, the same was, by or by the direction of the 
said testator, delivered to the said Louisa M , 

(party m this cause, and who was present at the time the 
same was executed,) in whose custody and possession 
the same remained entire and uncancelled -until after 
the death* of the said deceased, which took place at 
midnight on the same day as aforesaid, and was aftec- 
wards seen, observed, and perused by the said Michaol 

C , to whom the same was on several occasions 

produced and shewn by the said Louisa M > in 

such its original, entire, and uncancelled state, subso- 
quently to that event; and this, &c. 

That in or about the month of May, in the said year Fourtb. 
1888, the said Louisa M quitted Paris, and re- 
turned to England, and a short time after such her 
return, (to wit, some time in the following month of 
June,) in searching for, in order to produce, the same to 

hersolidtor, Mr. , discovered that she had lost 

or so mislaid the said will that she was unable to pro- 



534 TESTAMENTARY CAUSES. 

dace the same; that the said Louisa M haying 

made diligent search for the said will^ bat without 
success, was advised to, and did without any dehy, 
make application to the said Michael C to fur- 

nish her with the substance or effect of the ori^nal idll 
so drawn and written by him, as in the second artide 
of this allegation is pleaded, and so far as he could 
recollect in the very words thereof. That the said 
Michael C in due course from such application, 

made and transmitted from Paris, where he resided, in 
his own hand-writing a copy thereof, fix>m his memory 
and recollection, and (the said will having been Tery 
short,) in nearly the same words as the original, or at 
least of the same tenor and effect; and this, && 

Fifth. That the copy so made by the said Michael C 

as in the next preceding article is pleaded, and now re- 
maining in the registry of this court, marked with the 
letter A, annexed to the affidavit of the said Louka 

M , as to scripts, and pleaded and exhibited in 

this cause in the place and stead of the said original 
will destroyed, or lost, or mislaid as aforesaid, is and 
contains in substance and effect (if not in the identical 
words of the orig^al,) the last will and testament of the 
said deceased, the same as when it was executed by 
him, and remained uncancelled and entire, and as it 
was produced to, and seen, observed and perused by the 

said Michael C after the death of the said 

deceased, as hereinbefore is pleaded; and this, &c 

(The following additional articles in fiirtiier explana- 
tion of the res gesia were afterwards filed in this 
case.) 



TESTAMENTARY CAUSES* 535 



Additional Articles. 

ThatJamesS > Eaquirey the party in this cause^ Pint, 

deceased^ who departed this life in the city of Paris^ at 
midnighty on Wednesday^ the 21st day of February, in 
the year 1838, as pleaded in the first article of the 
aforesaid allegation^ was in perfect and vigorous 
health, until the night of the Sunday pveceding, in 
the course of which he was taken ill with a violent 
cold, tenninating in an ulcerated throat, whereof he 
died as afovesaid^ not having been considered in dan- 
ger, or had any professional advice, save that of a 
young medical student resident in the house, until 
tiie middle of the day on which he died. That 
Michael C , (the drawer and writer of, and one 

of the subscribed witnesses to the last will and tes- 
tament of the said deceased, as also pleaded, to wi^ 
in the second article of the said all^ation,) visited 
the said deceased in his room about noon of the said 
2i8t day of February, when the said deceased who 
bad received a medical education, intimated to the 
said Michael C - , (as conscious that his illness 

might be fintal,) and told him that he should probably 
soon require his services, and also told him in the 
event of his death, to write and apprize Messrs. 

J > of , whom he described as his 

solicitors, of that event; that in consequence of what 

the deceased so said, the said Michael C then 

proposed to call in Doctor B , an English Phy- 
sician resident in Paris, (and whom the deceased, as 
he said, had formerly known when studying medicine,) 
to which the said deceased assented, and thereupon 



536 TESTAMENTARY CAV8ES« 

the said Michael C went to, and shordy after- 
wards brought, the said Doctor B to the said 

deceased, who after examining him expressed his op- 
that he required great care and attention, but not tiiat 
he was in any immediate danger, and aj^inted to 
visit him again in the afternoon of that day. And the 
party proponent doth further all^ and propound, that 
the said deceased, pursuant to his said intimation to the 

said Michael C . sent for him about five o'dock 

in the afternoon of the same day, for the purpose, as he 
learnt on attending him, of making his wiU, which the 

said Doctor B , who came in very shortly after, 

and found the deceased much worse, recommended 
should be done without any loss of time; whereupon 
the very will, the substance of which is heran pro- 
pounded, was made and duly executed, in manner 
pleaded in the said second article of the aforesaid alle- 
gation. And the party proponent doth further all^ 
and propound that the said deceased was at and during 
all and singular the premises of sound and peifed 
mind, memory, and understanding, and well knew and 
understood what he said and did, and what was said 
and done in his presence, although from the effect of 
his disease he was only able to speak in a low tone of 
voice, and with difficulty, and so continued until a very 
short time of his decease; and this was, &c 

Second. That the said Mary Ann S shortly after the 

death of the said deceased, came to Paris, and made 

application to the said Louisa M respecting the 

will of the said deceased, (of which she bad heard 
through a letter written, addressed, and sent to the 

aforesaid Messrs. J , by the said Michael 

C . ■■ immediately upon that event,) and the pnn 



TESTAMENTARY CAUSES. 537 

perty left by the deceased in Ptois, on the occasion of 

which application Aesaid Louisa M produced and 

shewed the said will to CyR a lodger 

in the same house, who inspected and perused the 

same, (the said Michael C being also present at 

the same time,) in its entire and uncancelled state. 
And the party proponent doth expressly allege and 
propound that the paper writing now marked with the let- 
ter A, remaining in the re^try of this court, annexed to 

an affidavit of the said Louisa M as to scripts, 

and pleaded and exhibited in this cause, in the place 
and stead of the said original will, is and contains, if 
not in the very words of the original, Uie substance 
and efiiect of the said original will, bearing date the 
21st day of February, 1838, so produced to and in- 
spected and perused by the said ' O^R > 

on the occasion aforesaid, and wherein and whereby the 
said deceased left or gave the whole of his property 
both in France and in England, to the said Louisa 
■ ; and this was, &c« 

Allegation pleading fragmentary Will. 

That the said Charles Foster, the deceased in this AU^ndoii 
cause, died suddenly at his house, situate in the city of frLmentaiy 
Lincoln, about eight o'clock in the evening of Wed- ^"''- 
nesday, the 26th day of June, 1822, leaving behind ^^^ 
him Ann Foster, widow, party in this cause, his lawful 
relict, and also Charles Foster, William Foster, Sarah 
Pidcer, (wife of Joseph Picker,) Ann Foster, spinster, 
Elizabeth Foster, spinster, David Foster^ Henry Fos- 
ter, and Mary Foster, spinster, his natural and lawful 
children and only next of kin, the only persons who 



S88 T£8TAM£NTARY CAUSEk 

would have been entitled in the distribution of hb per- 
sonal estate and effects in case he had died intestate^ 
and was at the time of his death possessed of a free- 
hold messuage, or inn, in the county of Lincoln, called 
or known by the name 4)r sign of ^^ The Royal Oak,^ 
.with a dose and paddock and other hereditame&to 
thereunto belongings then respectiyely in the oocupa- 
tion of his son, the said Charles Foster^ of the Talae 
of two thousand eight hundred pounds, or thereabonts; 
also of the house wher^ he, the said deceased dwdti 
and of other freehold property in the said county of 
Lincoln, and in the said city of Lincoln^ of the value 
of five thousand four hundred pounds, or thereabouts; 
also of a leasehold estate in the said county of Lbcobi} 
of the value of one thousand pounds, or thereabouts, 
and of personal property to the amount of two thou- 
sand pounds, or thereabouts; and the party proponent 
doth further allege and propound that the said de- 
ceased in his lifetime advanced to, or for the use of bis 
son, the said Charles Foster, on various oocasioDS, 
divers sums of money amounting in the whole to tlie 
sum of five hundred pounds, or thereabouts ; and this 
was, &C. 
Second. That the said deceased, who had for some days be- 

fore been unwell^ was, on a day happening m die bo- 
ning of the said month of June, 1822, advised by 
Robert Swan, his solicitor, and Joseph Swan, hb 
surgeon, to make a vrill, to which he, the said deceased, 
replied, that he intended to do so, but that he eouM 
not give complete instructions for the same until cer- 
tain undivided estates then belonging to him, the said 
deceased, and his brother Thomas Foster, as joint 
tenants, should be divided and held by each in severaltj* 



TESTAMENTARY CAUSES. k5&9 

And the party proponent doth further allege and pro- 
pound that shortly afiterwards mstnictions were given 
by the said deceased and the said Thomas Foster to 
John May Bromehead, as solicitor to the said Thomas 
Foster^ and to the said Robert Swan, as solidtor for the 
said deceased, to prepare bleeds for the partition of the 
said estates ; that the said deceased several times after- 
wards conferred with them respecting the said deeds, 
and gave directions that they shonld be completed as 
soon as might be, and on other occasions, happening 
in the said month of Jnne, conversed with the said 
Robert Swan on the subject of his will, but on sudi 
last-mentioned occasions declared that he could not 
give to the said Robert Swan final instructions for the 
same until he had spoken to his said brother on the 
subject thereof, and until the said estates were parti- 
tioned, or he, the said deceased, on the said occasions 
expressed himself to the above or the like effect; and 
was at and during all and singular the premises of per- 
fect sound mind, memory, and understanding ; and this 
was,&c. 

That on or about the ISth day of the said month of ThidL 
June, 1822, the said deceased called, ia company with 
the said Thomas Foster, his brother, at the office of the 
said John May Bromehead, situate in the dose of 
lonooln, in the dty of Lincoln, and they, the said 
deceased and his said brother, then gave final instruc* 
tions to the said John May Bromehead relative to the 
partition of the said undivided estates mentioned in the 
next preceding artide of this allegation. That the said 
deceased upon the said occasion, amongst other things, 
informed the said John May Bromehead that he in- 
tended making his will as soon as the deeds of partition 



540 TESTAMENTARY CAUSES. 

were ezecated, and that he had spoken to Mr« Swan, 
(thereby meaning andintendmg the said Robert Swan,) 
his solicitor, about it; that he should leave his wift the 
house he lived in for life, and a sufficient annuity out 
of his real estates to make her comfortable ; that he had 
not quite made up his mind as to what proportion of 
his property he should leave to each of his children, but 
that he rather thought of giving Thorp and Haddiiig^ 
ton, (thereby meaning and intending certain estates, then 
the joint property of him, the said deceased, and his 
brother, the said Thomas Foster, and intended upon 
such partition to become the sole property of him, the 
said deceased,) to his son, who was then intended to be 
a £Burmer, (thereby meaning and intending Henry Foa- 
ter, one of the sons of the said deceased,) charged witk 
the payment of some money, but the amount he had 
not then determined upon; or he^ the said deceased, 
on the occasion expressed himself to the above or the 
like effect, and was at and during all and singnlar the 
premises of peifect sound mind, memory, and under- 
standing ; and this, &c. 
Fourth. That about half-past ten o'dodc on the morning of 

Wednesday, the 26th day of the said month of Jtme, 
1822, being the day of his death, the said deceased 
came to the office of the said John May Bromebead, 
for the purpose of executing the deeds of partition of 
the undivided property of himself and his said bro&er, 
hereinbefore particularly mentioned, agreeably to an 
appointment previously made by him for that puipose; 
and that the said deeds, after bdng read over to or by 
the said deceased, were accordingly executed by him 
and the other parties thereto; that the said deceased on 
the said occasion remained two hours, or thereabouts, at 



TESTAMENTARY CAUSES. 541 

the office of the said John May Bromdiead, and talked 
and discoursed rationally and sensibly^ as vreH with 
respect to the contents of the said deeds as on other 
snbjeets, and was at and during all and singular the 
premises of perfisct, sound, and disponng mind, me* 
mory, and understanding, and was not considered by 
hfanselfor others to be in any danger whatever, although 
he was and had been ill for some days before; and 
this, &c. 

That the said deceased, after he had executed the Fifth, 
deeds of partition in the next preceding article particu- 
laily mentioned, rode on horseback from the office of 
the said John May Bromhead to his own house ; and 
the party proponent doth farther allege and propound 
that about one o'clock of the said 36th day of June, 
Joseph Swan, the medical attendant, having called upon 
and seen the said deceased, found him very ill ; and he 
then apprised the said Ann Foster, (party in this cause,) 
that he thought the said deceased was in danger. That 
by her desire the said Joseph Swan left directions at the 
office of the said Robert Swan, the solicitor of the said 
deceased, tlutt Joseph Cooke, one of the clerks of the 
said Bobert Swan, should go to the house of the said 
deceased to make his will, as soon as he, the said 
Joseph Cooke, came back; he, the said Joseph Cooke, 
being at that time absent from the said office. That 
such directions for the attendance of the said Joseph 
Cooke were given in consequence of the absence of the 
said Robert Swan from Lincoln ; and this, &c. 

That accordingly the said Joseph Cooke, about five ^^^^^' 
o'clock in the evening of the said 26th day of June, 
1822, went to the house of the said deceased, whom 
he found ill in bed, and he then infonned the said 



542* TESTAMENTARY CAVSBa; 

deoeBsed tiia^ he had been sent by the said Joseph 
Swan for the purpose of malting bis \nll, or to Aat 
effect. That the said deceased, not then eonadenng 
himself in immediate danger, was at first desiraas of 
delaying to make his wiU until the letum of the sttd 
Robert Swan, who, as the deceased well knew, was 
expected to return to lincdn in about a f>Ttai|^t 
from that time, and the said deceased then ga^e as 
a reason, that he, the said Robert Swan, knew the 
state of his affairs and the purport of his testamen- 
tary intentions, though, he said, he had not given 
the said Robert Swan any instructions in writing for his 
wilL That the said Joseph Cooke, believing the said 
deceased to be in danger, advised him to be prepeied 
for the worst, whereupon he, the said deceased, de* 
termined then to make his will, and accordingly) 
having a mind and intention to make and execute 
his last win and testament in writing, and thereby to 
dispose of his estate and effects, proceeded to give 
the said Joseph C!ooke instructions for his wiO, the 
purport of which he, the said Joseph Cooke, imme- 
diately, in the presence of the said deceased, reduced 
into writing. That the said deceased having on the 
said occasion, amongst other tilings, declared his in- 
tention of bequeathing an annuity to his son, Wilham 
Foster, who had had a paralytic attack, and the said 
Joseph Cooke having asked the said deceased on vhat 
property he would have the same secured, he, the said 
deceased, said that he wished to consult his brother 
on the subject, and desired that his said brother might 
be sent for, which was accordingly done. That the said 
Thomas Foster, the brother of the said deceasedj 
having soon after come into the bedroom of the said 



TESTAMENTARY CAUSES. 543* 

deceased, he^ the said deceased, still conthiiikig of 
saund mind, conversed for some time with his said 
brother on the subject of his will and tiie disposition 
he meant thereby to make of his property, and reca* 
pitolated the instruetions he had, as aforesaid, g^ven to 
the said Joseph Codec for the same, and gave further 
instructions for his will, which the said Joseph Cooke 
immediately reduced into writing in the presence of tiie 
said deceaseds That the said deceased, amongst other 
things, and in answer to a question put to him by the 
said Thomas Foster, declared that he had not exactiy 
calculated the value of the whole of his real and per- 
sonal property, and requested the said Thomas Foster 
and Joseph Cooke to go down stairs and calculate 
Ae exact amount thereof. That they, the said 
Thomas Foster and Joseph Cooke accordingly left 
the bedroom of the said deceased, and calculated tiie 
amount of the property of the said deceased, and then 
returned to the said deceased's bedroom, and informed 
him thereof. That he, the said deceased, still conti^t 
nuing of sound mind, concurred in such calculation^ 
and requested the said Thomas Foster and Joseph 
Cooke to go down stairs again for the purpose of consi* 
dering in what manner the several annuities he intended 
to bequeath should be charged, and his property be 
fairly divided, adding, that he felt in want of air, and 
would put on his clothes and walk out, and would 
afterwards either come to them, the said Thomas 
Foster and Joseph Cooke, or send for them ; and he, 
the said deceased, and the said other persons, on tiie 
said occasion, expressed themselves in words to the 
above or the like effect ; and the party proponent doth 
further allege and propound, that he, the said deceased. 



^44 TB8TAMBNTART CAUSES. 

during all and singular the premises, talked and dis^ 
coursed rationally and sensibly, and well knew and 
understood what he said and did, and what was said 
and done in his presence, and was fiilly capable of 
giving instructions for his wiU, or of doing any other 
serious act of that or the like nature, requiring thought, 
judgment, and reflection ; and this, &c« 
Serenth. That the said Thomas Foster and Joseph Cooke 

haying, agreeably to the request of the said deceased, 
as mentioned in the next preceding article of this alle- 
gation, gone into another room of the said deceased's 
house, and having there fully considered in what mode 
the testamentary intentions of the said deceased mi^t 
be best carried into effect, and having made certain 
alterations in the instructions which the said Joseph 
Cooke had so as aforesaid received from the sud de- 
ceased and taken down in writing, the said Thomas 
Foster stated to the said deceased, who was then walk- 
ing, dressed, in his garden or yard, the effect of sach 
alterations, and what would be the purport of the will 
of the said deceased, if drawn according thereto. That 
the said deceased, still continuing of sound mbd, 
memory, and understanding, fully understood and ^ 
proved thereof, and desired that his will mi^t be 
immediately prepared agreeably thereto ; and the party 
proponent doth further allege and propound that the 
said deceased, during all and singular the premises, 
talked and discoursed rationally and sensibly, and well 
knew and understood what he said and did, and what 
was said and done in his presence, and was fuUy capable 
of giving, or of understanding and approving of, in- 
structions for his will, or of doing any other serious or 
fBtional act of that or the like nature requiring though^ 



TESTAMENTARY iJAUSES. (45 

jodgmenfy and reflection. That the said Thomas Foster 
then mfonned the said Joseph Cooke^ that the said de- 
ceased fully approved of the alterations made in the 
original instructions given by the said deceased for his 
wtHj and left the house of the said deceased for the 
parpose, as he stated^ of procuring a sheet of paper on 
which the said will might be written ; and this, &c. 

That very shortly after the said Thomas Foster had Eighth, 
left the house of the said deceased^ as mentioned in the 
next preceding article of this allegation, he, the said de- 
ceased, walked up stairs to his bedroom, became worse, 
and fainted away. That the said Joseph Cooke, being 
veiy much alarmed thereat, went to the house of the 
said Thomas Foster to inform him thereof. That the 
said Thomas Foster immediately returned with the said 
Joseph Cooke to the house of the said deceased, and 
the said Joseph Cooke, pursuant and agreeably to the 
instructions which had been so as aforesaid given by 
the said deceased, began to draw up and reduce into 
writing this very wiU, marked A, now remaining in the 
r^try of this court, beginning, ending, and subscribed 
as aforesaid, pleaded and propounded in this cause as 
and for the last will and testament of the said deceased. 
That the said Joseph Swan, the surgeon aforesaid, 
whilst the said Joseph Cooke was writing the same, 
seveml times passed from the bedroom of the said de- 
ceased into the room wherem the said Joseph Cooke 
was sitting, and being well aware of the danger of the 
said deceased, urged the said Joseph Cooke to finish 
the sud will as soon as possible. That the said Joseph 
Cooke accordingly continued to write the said will with 
great expedition, compressing the same as much as he 
could, until he was informed by the said Joseph Swan 

N N 



54€ TESTAMENTARY dSlUSCfl. 

that, unless what was then written of the said wiU was 
executed^ he, the said deceased, would die before it 
could be finished, or to that effect, whereupon the said 
Joseph Cooke abruptly concluded the said will, and 
carried it into the room of the said deceased for execu- 
tion ; and this, &c. 
Ninth. That the said Joseph Cooke having carried the said 

will, marked A, pleaded and propounded in this cause 
as the last will and testament of the said deceased, into 
the said deceased's bedroom, as mentioned in the next 
preceding article of this allegation, and having informed 
the persons present, or some of them, that another wit- 
ness would be necessary to attest the said will, and Mr. 
Joseph Wheatley, oiie of the subscribing witnesses to 
the will, having been sent for, he, the said deceased, 
well knowing and understanding the contents of the 
said will, and that the same were in conformity with 
the instructions he had given for the same, so as afore- 
said altered by the said Thomas Foster and Joseph 
Cooke, and afterwards approved of by him tiie said de- 
ceased, and liking and approving of the same as and 
for his last will and testament, in testimony of such his 
good liking and approbation, did, on or about the said 
86th day of June, 1822, set and subscribe his name 
and afi&x his seal thereto, and did publish and dedaie 
the same as and for his last will and testament, in the 
presence and hearing of divers credible persons, three 
of whom, in his presence, at his request, and in the 
pres^ce of each other, did severally set and subscribe 
their names thereto, as witnesses of the due execution 
thereof; and the party proponent doth further all^ 
and propound that h^ the said deceased, did give, de- 
vise, bequeath, dispose, and do, in all things as in thft 



TESTAMENTARY CAUSES. 54^ 

said will is contained^ and was, at and during all and sin- 
gular the premises, of perfect and sound mind, memory, 
and understanding, and well knew and understood what 
he said and did, and what was said and done in his 
presence, and was fully capable of making and execut- 
ing his last win and testament, and of knowing and 
understanding the contents thereof, and of doing any 
other serious or rational act, of that or the like 
nature, requiring thought, judgment, or reflection ; and 
this, &e« 

That immediately after the said deceased had so Tenth, 
made and executed his last will and testament in writ^ 
ing, as mentioned in the next preceding article of this 
allc^tion, the said Joseph Cooke proceeded to draw 
up and reduce into writing, the very codicil, marked B, 
now remaining in fiie r^istry of this court, beginning 
and ending as aforesaid, pleaded and propounded in 
this cause as and for a codicil to the said last, will and 
testament df the said deceased, intending thereby to 
explam the contents of the said will, and more dis- 
tinctly and at bu^ge to express the testamentarjr intent 
tions of the said deceased; ThaJ^ he, the said Joseph 
Cooke, continued writing the same with as much expe* 
dition as he c&tAd use, until he was informed lihat the 
said deceased waa dead, whereupon he immediately 
ceased writing the sanie; and the party proponent 
doth allege and propound that the said codicil was 
dmwn up in exact conformity with the last testamen-* 
tary mtentionB of th$ said deceased, and tliat he, the 
said deceased, would have executed the same if he had 
not been prevented 1by the act of God. That the said 
win and cpdidl were, iknmediately liftier the death of 
the said deceiused, read over in his hoiise by the said 

NN 2 



548 



TESTAMENTARY CAUSES. 



Eleventh. 



Twelfth. 



Joseph Cooke, in the presence and hearing of the said 
Charles Foster, the son of the said deceased, and of 
other persons, and were deUvered by the said Joseph 
Cooke to the said Thomas Foster for safe costody; 
and this was, &c. 

That on Saturday, the 29th day of the said month of 
June, shortly after the funeral of the said deceased, the 
said will and codicil propounded in this cause were read 
over by the said Thomas Foster, in the presence and 
hearing of the said Charles Foster and others, and he, 
the said Charles Foster, requested that the said will 
and codicil might be given to him, for the purpose of 
his reading them, whereupon the said will and oodidl, 
with the original paper of instructions so as aforesaid 
taken by the said Joseph Cooke from the said deceased 
folded up therein, were ^ven to the said Charies 
Foster, who shortly afterwards abruptly left the room 
where the said family were assembled, taking the said 
willj codicil, and instructions with him, and soon after- 
wards attempted to destroy the said will, oodidl, and 
instructions, by tearing the same into pieces and scat- 
tering the fragments thereof; and the party proponent 
doth further allege and propound that the said Charles 
Foster having been afterwards in the course of the day 
asked for the said will, codicil, and instructions^ he, the 
said Charles Foster, declared that he had left the same 
either on the chair in which he had sat in the said 
room or elsewhere, or then expressed himself to that 
or the like effect, whereupon a diligent search was made 
for the said will, codicil, and instructions, bat the same, 
or any of them, could not then be found ; and this, && 
. That on the following day, to wit, Sunday^ the 30th 
day of the said month of June, divers parts or firag- 



TESTAMENTARY CAUSES. 549 

ments of the said will^ codicil, and instructions were 
found scattered in several closes or fields adjoining the 
river Witfaam, near the house in which he the said 
deceased died. That all the said fragments were imme- 
diately collected, and all the parts ^nd fragments of the 
said will and codicil were, on or about the 7th day of 
July, 1822, pasted on two several sheets of paper in 
manner and form as the same now appear; and that he, 
the said Joseph Cooke, shortly afterwards copied out 
the said fragments of the said will and oodidl, filling up 
from memory and recollection such parts as could not 
be found, which said parts so filled up are underscored, 
the said copies being now respectively hereunto an- 
nexed, marked with the letters C and D ; but that the 
mi original instructions for the said will and codicil, 
so as aforesaid written by the said Joseph Cooke^ 
having been written very dose, and in a very small 
hand, on both sides of a piece of paper, and but few 
fragments thereof having been found, the same could 
not be pasted or put together in like manner ; and the 
party proponent doth further allege and propound that 
the said paper, partiy underscored, hereunto annexed, 
marked C, contains the whole purport and effect of the 
true and original last will and testament which was so 
executed by the said deceased, as pleaded in the ninth 
artide of this allegation, and afterwards read over by 
the said Joseph Cooke in the presence and hearing of 
the said Charles Foster and others, as mentioned in the 
tenth article hereof, and afterwards, to wit, on the 29th 
day of the same month of June, read over by the said 
Thomas Foster in the presence and hearing of the said 
Charles Foster and others, as mentioned in the deventh 
article hereof, save and except that the names of Ann 



550 



Thirteenth. 



TESTAMENTARY CAUSES. 

Foster and Richard Dixon, in the said paper writing 
respediyely mentioned^ are therein, by mistake, written 
SanJi Foster and John Dixon; and that the said 
paper writing, also partly underscored, hereunto an- 
nexed, marked D, contains tihe whote purport tand 
effect of the true and original codicD to Ae said will, so 
¥nritten by the said Joseph Cooke, and read over by 
him on the said 26th day of June, in the presence and 
hearing of the said Charles Foster and others, as men- 
lioned in the said tenth article hereof, and afterwards, 
to wit, on the said 39th day of June, read oyer by the 
said Thomas Foster in the presence and hearing of die 
said Charles Foster and others, as mentioned in the 
said eleventh article of this aU^ation, save and except 
that the name of the said Bicbard Dixon is therein, also 
by mistake, written John Dixon ; and this, &c« 

That all and singular the premises were and are true, 
luid so forth* 



Allegation pleading Execution of a Codicil and 

annexing Official Copy. 

Allegation That in the months of September and October, 18— 5 

cution of a ^^ ^'^ Charles Smith, the testator in this cause, de- 
codicil and ceased, being at the city of Paris, in the kingdom of 

annexing offi- » o j » o 

cial copy. France, was attacked with a complaint which greatly 
Fint affected his spirits, and occasioned a general langaor 

and debility in his whole body. That he, the said de- 
ceased, whilst so living at the said dty of Paris, and 
being of sound and disposing mind, memory, and un- 
derstanding, long subsequent to his having made and 
duly executed his last will and testament in writing) 
bearing date, &c., having a mind and intention to make 



T£6TAMBMTARY CAUSES. (^51 

some alteaRation in, or addition to, his said will, did give 
directJODfi or instructions for the drawing or writing a 
^codicii to his said will, to , and, pursuant 

to soch directions or instructions, the said 
drew up apd reduced into writing flie original codicil to 
the said last will and teattoi^nt of the said deceased, 
bearing date ^ now remaining in the hand% 

eoitody^ or xiegiatry of , King's Counsellor 

aod Notary PuUic^ at the said city of Paris, which said 
OiilgiBal codicil' the party proponent prays may be had^ 
meired, and taken as part and parcel hereof, and as if 
here .r^ and inserted ; and after f^. same was so 
idrawn up and reduced into writing, it was read all over, 
wdibly and distinctly, to the said testator, by the said 

y in the presence and hearing of Messnu 
and , Notaries of the said 

city of Paris, and he, the .said testator, then well knew 
uid understood the contents of the said codicil, and 
well Uked and approved of the same, and expressed his 
approbation thereof, in the presence and hearing of 
the said ; and he, the said testator, did, 

iu and by his said codicil, give, will, bequeath, dispose, 
and do in all things as in the- said original codicil and 
the aforesaid authentic notarial copy and exemplar, 
thereof ia contained, and was, at and during all and 
lingular the premises, of sound, perfect, and disposing 
Qiind, memory, and understanding, and well knew and 
understood what he said and did, and what was read to 
him, and was very capable of giving instructions for 
and of making a codicil to his will, and of understanding 
the nature, contents, and consequence thereof, and of 
doing any rational act of that or the like nature ; and 
thia,&c. 



558 TESTAMENTARY CAUSES. 

Second. That the said origmal codicil to the said last wiU and 

testament of the said deceased, pleaded and pro* 
pounded in the next preceding article ci tfab allegationi 
and bearing date &c., beginning and ending as afoffesaid, 
is now remabing in the hands, custody, or registry 
of the aforesaid , who was and is a notary pub- 

lic residing at the said dty of Paris, and an antlientie 
person there, by royal autliority duly admitted and 
sworn; and the party proponent doth further all^and 
propound the aforesaid copy or exemplar of the said 
codicil now remaining in the registry of fliis court, bs- 
guming and ending as aforesaid, and annexed to an 
aflELdavit of the said , as to scripts was and is a 

true and authentic copy or exemplar of the said original 
codicil of the said testator in this cause, deceased, 
pleaded and propounded in the next preceding artide, and 
now remaining in the hands, custody, and registry of 
the aforesaid , and was and is in all respects 

agreeable to the same, and so attested to be by the said 

R and B— — , who were and are King's 

Counsellors and Notaries Public, of the said dty of 
Paris, and authentic persons to whose signatures M 
faith and credit are and ought to be gi^en as well in 
judgment as without, as appears by the attestation or 
certdficate of the mayor and sberifis of the said city of 
Pains, under the seal of the said dty, written at the 
foot or bottom of the aforesaid authentic copy of the 
said codidl; and this, &c. 

Allegation. 

Allegation That the said Frands Newman, the party in this 
cution^of wiU cB^ixBe deceased, being in North America, where he had 
and codicil, for some years before resided, on or about the 26th day 



TESTAMENTARY CAUSES. 5Bi 

of September, 1817; being of sound mind, memory, and annex, 
and imderstanding, and having a mind and intention to copies.^ 
make his lai^ will and testament in writing, did with ^ 
his own hand draw and write the same, or did give 
directions and instructions, for the drawing thereof. 
That pursuant to such instructions the original hat 
^nH and testament of the said deceased now remaining 
in the lefpatrY of the Orphans' Court, of Charles 
Goontjr, in North America^ was drawn up and reduced 
into writing and carefoUy read over to the said testa^ 
tor, who well knew and understood the contents 
thereof and in testimony of such his good liking and 
approbation he did, on or about the day of the date 
thereof, duly sign, seal, publish, and Bedare the same 
as and for his last wiU and testament in the presence 
and hearing of several credible witnesses, three of 
whom, at his request, and in his presence and in the 
preaenee of each other, set and subscribed their names 
as witnesses thereto* That the said testator appointed 
the said A. B., sole ezeeutrix thereof, and did further 
give, will, bequeath, dispose, and do in all things as in 
the said will is contained ; and he the said deceased at 
the aeveial times of the giving instructions for the 
drswing and making of the said will and at the time of 
diesarae being read over to or by him, and of his sign- 
ing} sealing, and publishing the same as and for his last 
win and testament, was of sound and perfect mind, 
memory, and imderstanding, and capable of making 
wd executing a will or of doing any other serious or 
rational act of that or the like nature, requiring thought, 
judgment, and reflection; and this was, &c* 

That the said Francis Newman, the party in this Second, 
cause, deceased, still continuing of sound mind, memory, 



554 7JBSTAMENTARY CAUSES. 

and understanding, and having a mind and intention to 
make a further addition to the said mil ^deadedaad 
propounded in the next .preceding artidaof ihis alfe- 
gation, didjoathe > with hb o^m faand^ 

.write^ or did give directions or instnietions £at the 
drawing or writing thereof, and, punmant to sud^ dino- 
tions or instructums, the very paper writing now remaiBr 
ing in the said registry of the Orphans' CSourt, and 
bearing date y and. purporting to be a oodicU 

to the said last will and testament of the said decc«iri> 
and b^inning, ending, and subscribed as aforesaid, ms 
draiini up and reduced into writing, and aftervuds 
carefully read over. to and by the said deceased, who 
weU understood the contents and approved thereof, as a 
codicil to his said will ; and, in testimony of his good 
liking and approbation, on or about the said i 

being the day of date thereof, set and subscribed hit 
name thereto in manner as liierein now appears; and he, 
the said testator, did, in and by his said oodidl, give^ 
will, bequeath, dispose, and do in all things as is (heidn 
contained; and was at and during all and singular the 
premises of sound and disposing mind, memory, and 
understanding, and well knew and understood what he 
said and did, and was capable of making a codicil, or of 
doing any other serious or rational act of that or the 
like nature requiring thought, judgment, and reflection; 
and this, &c. 
Thiid. That the said Francis Newman, after the premises 

mentioned in the next preceding article, deported 
this life, to wit, on or about . That after his 

death, the aforesaid original will and codicil of the said 
deceased were deposited in the registry of the Orphans' 
Court, of Charles County, in Maryland aforesaid, where 



TESTAMENTARY CAUSES. 555 

the same now respectively remain; :and a probate of 
the same was daly granted by the judge or other com- 
petent authority of the said court, to the said A. B., 
die s(de eitecutrbc named in the said will, who was-first 
dulyswom'to the truth of the said will and codicil, and 
al sndi thMie, also, one of the subscribing witnesses to 
the said wOl, « Bind oifte of 4he subscrilmig witnesses 
to the said codicil, were duly sworn as to the due «nd 
fiudiful execution of the said will and codicil by the said 
deceased, as in^ tad by the acts and records of the said 
GOQTt, on reference being tiiereto had, wiU more fuUy 
appear ; and tiiis, &o* 

That m supply of proof of the premises mentioned Fourth, 
and set forth in the next preceding article, *and to all 
intents and purposes in the law whatsoever, the puty 
proponent doth exhibit, hereto annex, and pray to be 
here read and inserted and taken as part and parcel 
hereof, a true and authentic copy of the said last will 
and testament, with one codicil thereto of the said de- 
ceased, together with authentic copies of the dtepositions 
of the said witnesses thereto, as pleaded in the next pre* 
ceding article of this allegation, now remaining in the 
registry of this court, annexed to an affidavit as to scripts 
duly made and sworn to by , parties in this 

cause ; and the party proponent doth allege the same 
to be true copies of the said last will and testament and 
codidl thereto of the said deceased, and of the depo- 
sitions of the subscribing witnesses to the said will and 
codicil as aforesaid, now remaining in the registry of 
the said Orphans' Court of Charles County aforesaid ; 
and that the contents thereof were and are true ; and 
that the same is subscribed by and with the proper 
hand of Mr. Humphery Barnes, the registrar of wills 



556 TESTAMENTARY CAUSES. 

of the said coturt: and that aU things were so had and 
done as therein contained; and this was, &c. 

When the evidence has been taken on the first alle- 
gation, and publication prayed, the opponent of the win 
files a responsive allegation, pleading circimistanoes in 
refiitation of its validity or genuineness. The peculiar 
character of these pleas necessarily varies indefimtely, 
but the general principles of law, on which the legal 
efiect of a will or codicil can be controverted are com- 
prehended under the fi)Ilowing heads ; viz., incapacity 
of testation, from imbecility or insanity, (partial or 
absolute;) coercion, and undue influence; firaud, or 
forgery (a). 

Informal execution under 1 Vict. c. 2(5, (An Act 
for the Amendment of the Laws with respect to Wilk,) 
or the law of fi>rdgn domicile (6) will equally ofiisr 
occasion for controversy, but are not so necessarily the 
subject of a plea. 

These various responsive pleas may be illustrated by 
the following precedents :— < 

Responsive Allegation. 

Responsive That George Acland Barbor, Esquire, the deceased 
All^aboD. jjj ijjjg cause, being of the age of thirty-nine years, and 
Pint whilst travelling for pleasure on the continent of Eu- 

rope, departed this life at Frankfort-on-the-Maine, on 

(a) Higginson ▼. Colcot, Lee's mas and Thomas, Hagg. R. toL 

R. vol. 1, p. 138. Littleson (by 2, p. 423. Dew v. Ckrke and 

her guardian) v. Clark, Lee's K. Ckrke, Add. R. toL 1, p. 279, 

vol. 2, p. 229. Brouncker v. and vol. 3, p. 79. 
Brouncker, Phill. R.. vol. 2, p. (6) Curling v, Thornton, Add. 

57. Groom and Evans ?. Tho- R. vol. 2, p. 6. 



TESTAMENTARY CAUSES. 657 

or about the 7ih day of July, 1839, a bachelor, without 
parent, brother, sister, nephew, niece, unde, or aunt, 
leaving behind him the said William Arundell Yeo, 
party in this cause, his lawful oousin-gennan and only 
next of kin, the sole person entitled to his personal 
estate and effects in case he had died intestate ; that the 
deceased left behind him at his death, personal estate and 
effects of the value of between £3,000 and jC4,000^ and 
real estate of the gross annual value of £4,400, but 
burdened with annuities and other incumbrances 
amounting to the sum of £1,900 per annum; and 
thi8,&c. 

That very shortly after the event took place, the fact Second, 
of the deceased's death became known and was noto- 
rious at Barnstaple, where William Gribble, the agent 
and solicitor of the said Anne Melton, now Mackenzie, 
and the said Tom Dight Mackenzie, was resident; that 
the body of the said deceased was interred in the burial- 
place of his femily at Fremington, near Barnstaple 
aforesaid, on Monday, the 22d day of the said month of 
July, and the death of the said deceased was^ prior to> 
or very shortly after, the said 22d day of July, com- 
mnnicated or otherwise became known to the said Anne 
Melton, now Mackenzie, and the said Tom Dight Mac- 
kenzie, who were at such time resident at Exeter, and 
to the said William Gribble, all, some, or one of them ; 
and this, &c. 

That from about the year 1822 till the year 1837» Third. 
Mr. WilUam Law^ then a solicitor at Barnstaple, and 
from the month of May, 1832, till the deceased's death, 
Mr. Thomas Hooper Law, the nephew, and for some 
years the partner of the said Mr. William Law, were. 
the confidential solicitors of the said deceased^ and with 



558 TESTAMENTARY CAUSBSf. 

them the said deceased was in the constant habit of 
friendly communication) and unreservedly consulting 
upon his private affairs and interests of the most secret 
nature^ and during the said period would not transact 
any legal business, or execute of sign his name to any 
legal document, without tiie advice and concurrence of 
the said William Law and Thomas Hooper Law, or of 
one of them; that the deceased, who kept hounds, and 
was fond of and much addicted to field and otiier rural 
sports, was wholly ignorant of law and its forms and 
phraseology, would never serve on the grand jury, and, 
though in the commission of the peace, would never 
act as a magistrate, or as a commissioner Qr trustee in 
any public trust in his county ; and this, &c. 

Foiirih. That on the 15th day of October, in the year 18S0, 

the said deceased duly made and executed his last will 
and tiestament jn writing, (now remaining on record in 
the registry of this court,) which had been prepared 
for him by Mr. William Law, in the next preceding 
article mentioned, and thereby, after charging certain 
annuities and legacies to different individuals therrin 
named, he gave, devised, and bequeathed the whole <^ 
his real and personal estates to the said William Arun* 
dell Teo, for and towards whom he had at all times 
entertained, expressed, and evinced, and to the time of 
his death continued to entertain, express, and evince 
the greatest regard and affection, and unreserved con- 
fidence ; and this, &c. 

Fifth. That about the year 1 626, the sud deceased formed an 
illicit connexion with A M-^ — ^^S y the daugh- 
ter of a respectable bookseller residing in Barnstaple, 
and previously, as the deceased frequently declared, of 
Tirtuous life and irreproachable character; that the 



TE8TAMEKTART CAUSES* 560 

said deceased cohabited with her daring several months 
of each year, which were mostly spent in travelling 

abroad^ on which occasions the said A M 

8 passed as the deceased's wife, and bore the name of 

Barbor; that the said A M 8 was so living 

with and passing as the wife of the said deceased at his 
death; that by her the said deceased had twodiildren^viz*, 
a son bom in the month of January, 1829, who died an 
infant in arms several years since, and a daughter bom 
in the mmth of February in the year 1839, who was 
and is called by the name of Eliza Barbor, and who is 
now living; that such children were constantly owned, 
acknowledged, and spoken of by tiie said deceased as 
Ms dbildren^ and were so reputed to be; that the said 
deceased at all times evinced great afibetion and regard 

for the said A M S , and also for his said 

daughter by her, the said Eliza Barbor; and by his 
bond bearing date th^ 16th day of September, 1828, 
and prepared by the said William Law, he settled upon 

the said A M S the sum of two hundred 

pounds per annum during her life, and by his said will 
bequeathed to her an additional annuity of two hundred 
pounds per annum for life; and by his said will, he, the 
deceased, likewise directed the sum of three thousand 
pounds should be laid out ai)d invested for the benefit 
of the said Eliza Barbor, tiis daughter by the said 

A M S ; that the said original bond is 

now in the possession of the said A M S ; 

and will be produced at the hearing, if required; and 
this, &c« 

That in part supply of proof of the premises in the Sixth, 
next preceding article pleaded and set forth the party 
proponent doth exhibit, hereto annex, and pray to be 



560 TESTAMENTARY CACSBS. 

here read and inserted^ and taken as part and parcel 
hereof^ a certain paper writings marked A^ and doth 
allege and propound the same to be and oontam 
a true and' correct copy of the bond pleaded in the 
next preceding article; that the same hath been care- 
fully collated with the original and found to agree there- 
with; that all things were so had and done as therein 
contained; and that George Adand Barbor therrin 
mentioned as the obligor of the said bond^ and Geoige 
Adand Barbor the deceased in this cause, was and is 
one and the same person and not divers; and that 

A M S , therein mentioned as obligee^ and 

A M S— , mentioned in the said next preced- 
ing artide of this allegation^ was and is one and die 
same person and not divers ; and this, Suu 
Seventh. That some time in the year 1834, Ihe said deceased 
formed an illidt coimexion with a person then rending 
in Barnstaple named Anne Melton, now Mackense, 
(wife of the said Tom Dight Mackenzie, party in this 
cause, and as pretended, an attesting witness to the 
pretended codicil propounded in this cause ;) that the 
Said Anne Mdton at such time supported herself by 
keeping a day-school for the children of the smaller 
shopkeepers and other persons in the humbler dasses 
of life at Barnstaple, and also by taking in needle- 
work; that such the coimexion of the said deceased 
with the said Anne Melton, now Mackenzie, was kept 
up till about the month of May in the year 1838, hj 
the said deceased firequentiy visiting her at the several 
houses of Hammond Stevens, of Robert Stevens, and 
of Besley in Barnstable, where she had 

lodgings^ and occasionally by his dandesfindy sleeping 
with her; and this, &c» 



TESTAMENTARY CAUSES. 5^1 

That in or about the month of May, 1838, the said Eigbth. 
deceased went to Bath, and that upon his return from 
Bath, to wit, on or about the 22nd day of June, in the 
said year, be entirely broke off his Ulicit connexion with 
the said Anne Melton, otherwise Mackenzie, and that 
the same was never afterwards renewed; and this, &c. 

That prior to or during the continuance of the afore- Ninth. 
said illicit connexion between the said deceased and the 
said Anne Melton, she had become or became ac- 
quainted with the aforesaid Tom Dight Mackenzie, a 
Musician, in poor circumstances, who was, during such 
connexion, in the frequent habit of paying long visits 
to and remaining with her alone at her lodgings at 
Barnstaple and subsequently, as well in as before and 
after May 1838, boarded in the same house with her; 
and this, &c. 

That in or about the month of May 1838, whilst Tenth. 
the said George Acland Barbor, the deceased, was, as 
before pleaded, at Bath, the said Tom Dight Mac- 
kenzie wrote and addresed two letters to the said de* 
ceased on the subject of his connexion with the said 
Anne Melton, which letters were sent to his residence 
at Fremington, but were not received by the said de- 
ceased, until his return to Fremington, and which two 
letters the said deceased subsequently sent back to the 
said Tom Dight Mackenzie ; and this, &c. 

That during the deceased's aforesaid absence at Bath, Eleventh. 
the said Tom Dight Mackenzie went to a public-house 
at Fremington, and there made anxious inquiries as to the 
value of the estates and property of the said George 
Adand Barbor, and stated that the aforesaid Anne 
Melton, party in this cause, (to whom he expressed 
himself to be the fnend,) had lost her school through 

o o 



562 TESTAMENTARY CAUSES. 

the means of the said George Adand Barbor, and 
he^ the said Tom Dight Mackenzie, then violently 
abused the said George Adand Barbor, calling him by 
the most opprobrious names and epithets, and threat- 
ened to take his life if he did not make the said Anne 
Melton reparation for the injury which he alleged she 
had sustained through her aforesaid connexion with 
him ; and this, &c* 
Twelfth. That in a day or two after the deceased's aforesaid 

return from Bath, Charles Herley, Esquire, an old and 
intimate friend of his, mentioned to the said deceased 
that there was some story afloat in the town (meaning 
Barnstaple) about an intrigue of his (the deceased's) 
with a woman named Melton; upon which the said de- 
ceased admitted to the said Charles Herley that he had 
been connected with the said Anne Melton, and told 
him that he was going into Barnstaple about a letter he 
had received from a Mr. Mackenzie (meaning the afore- 
said Tom Dight Mackenzie) upon the subject, which 
letter being one of the letters pleaded and referred to 
in the next preceding artide, the said deceased then 
produced and read to the said Charles Herley, and the 
contents of which were to the following effect, viz^^^that 
he, Mackenzie, had formed an engagement with the said 
Anne Melton, believing her to be virtuous and conect, 
but that he had discovered that she had been intngning 
for some time with the deceased; that his, the writer's^ 
prospects of happiness were destroyed, and he was 
determined that one or the other should fall;'^ that the 
said Charles Herley recommended the said deceased to 
send bade the letter, and should he recdve any annoyance 
from Mackenzie, to place the matter in the hands 
of the police ; and this, &c« 



TB8TAMSNTARY CAUSES. ^63 

Tliat on Tuesday, the 26th day of June, in the said Thirteenth. 
year 1838, the said Oeotge Acland Barbor called upon 
the aforesaid Thomas Hooper Law, at Barnstaple, and 
then informed him of the circumstances of his con- 
nexion widi the said Anne Melton; that Mr. Mac- 
kensde (meaning the said Tom Dight Mackenzie) had 
applied to him to make a settlement or provision for 
W, and that he intended so to do; that the said de- 
ceased, after consulting with the said Thomas Hooper 
Law, instructed him to prepare a bond securing the 
payment of sixty pounds per annum to the said Anne 
Melton during her life; that in the course of the inter- 
view between the said deceased and the said Thomas 
Hooper Law on the said occasion, the said deceased 
obsenred that Mackenzie, (meaning the said Tom 
Dight Mackenzie, had written to him a very violentletter 
upon the subject, threatening to blow his (the de- 
ceased's) brains out if he did not make provision for 
ber, and that he (Mackenzie) would blow his own brains 
oat, and also Miss Melton's, if that were not done or to 
that eflfect; and the said deceased added, that the said 
Tom Dighit Mackenzie had interferred in the matter as 
Uie lover of the said Anne Melton, and represented to 
him (the deceased) that the school she had kept was 
broken up in consequence of the reports then prevalent 
at Barnstaple, of his (the deceased's) connexion witli 
ber, and that he wanted the sum of two thousand 
pounds to be placed in his, the said Tom Dight Mac- 
kenzie's, hands for the use of the said Anne Melton, 
promising to return the same to the deceased at her 
death; that he, the deceased, had refused to comply 
irith such proposition, and had returned Mackenzie his 
ktter, informing him that he, the said deceased, did not 

o o 2 



564 TESTAMENTARY CAUSES. 

care jei flip of his finger for his threats, or words to tliat 
effect; that a bond was in pursuance of such instnic- 
tions prepared, and on the 26th day of the said month 
of June executed by the said deceased ; and this, &c 
Fourteenth. That on the 28th day of the said month of June, 
the said George Acland Barbor again called upon the 
aforesaid Thomas Hooper Law, and informed him that 
he had agreed to increase the annuity to the ssdd Anne 
Melton firom sixty pounds to eighty pounds, which 
latter sum was the sum to be actually paid to her; but 
tiiat at the particular desire of the said Anne Melton, 
he had agreed to give her a bond for the payment of 
one hundred pounds a-year, that she might shew it to 
her friends to satisfy them, but that she had promised 
him never to take more than eighty pounds a-year, or 
words to that effect; and the said deceased then gave 
to the said Thomas Hooper Law the bond which he 
had executed, as in the next preceding article is pleaded, 
in which an alteration had been made by the oblitenip* 
tion of the consideration, to wit, the past services of 
the said Anne Melton, and the alteration of the amount 
of the annuity of sixty pounds — ^first, into ^ Eighty,*' 
and then into " a hundred pounds f^ and on the fly-leaf 
of which was written in the deceased^s handwriting, 
^^ I have made some alterations in this bond which are 
quite correct — 6. A. Barbor f' and he desired the said 
Thomas Hooper Law to prepare another bond for exe- 
cution, according to the said altered form; that accord- 
ingly another bond was prepared by the said Thomas 
Hooper Law for securing the payment of one hundred 
pounds per annum to the said Anne Melton during her 
life, and was duly executed by the said deceased on the 
29th day of the said month of June, and is now in the 



TESTAMENTARY CAUSES* 565 

hands^possession^ or custody of the said Anne Melton^now 
Mackenzie^ or of some person on her behalf; and this^ &c. 

That in part supply of proof of the premises pleaded 
and set forth in the next preceding article of this Fifteenth, 
all^tion^ the party of the proponent exhibits^ &c.^ 
a paper writing, &c^ to be and contain the origi- 
nal bond^ which was signed and executed by the said 
deceased on the 26th day of June, 1838, in the presence 
of and attested by the said Thomas Hooper Law, as in 
the thirteenth article pleaded, and which was on the 
28th day of said month produced and g^ven, by the said 
deceased^ to the said Thomas Hooper Law, with the 
several alterations and obliterations therein as pleaded 
and set forth in the next preceding article, and that the 
same is now in all respects in the same plight and con- 
dition as the same was when so given by the said 
deceased to the said Thomas Hooper Law, as in such 
thirteenth article is mentioned; that the interlineation 
of the words, ^^the said Anne Melton,'' and the inter- 
lineation of the word ^' hundred " four times appearing in 
the said bond, are of the proper handwriting of the 
said Anne Melton, now Mackenzie, party in this cause^ 
and are so well known and believed to be by divers 
persons of good faith and credit, who have often seen 
her write^ and thereby and otherwise have come to 
know and be well acquainted with her manner and cha* 
racter of handwriting; and this, &c. 

That very shortiy after the occurrence of the circum- Sixteenth, 
stances pleaded in the fifteenth article of this allegation, 
the said deceased informed several of his friends and 
others that he had settied upon the said Anne Melton 
one hundred pounds per annum for her life, and had 
got rid of her altogether, adding to the eifect that he 



566 TESTAMENTARY CAUSES. 

did not wish her to be placed in a wane position on 
account of her connexion with him, and that as she 
had, through that drcumstance, lost the liyelihood she 
had before obtained by her school, he had, by allowing 
her one hundred pounds a year, given her quite as 
much as she could ever have made by it ; that on its 
being represented to him that the said Anne Melton 
had never made a profit of half that amoont by her 
school^ the deceased declared, that he had flien beeo 
grossly deceived, inasmuch as he had been led to be* 
lieve, by the representations of the said Anne Melton 
and her friends, that what he had done for her by the 
said bond would be only equivalent to the loss she had 
sustained by the breaking up of her school, and Ihat 
the aforesaid Tom Dight Mackenzie had endeavoured 
to persuade him, the deceased, to pay, in lieu ci an 
annuity, a sum of money down, but that he had refused 
so to do, and that the said deceased, on sudi occasioDS, 
and on all subsequent occasions, when speaking to his 
fidends and others of the said Anne Melton, now Mae- 
kenzie, in reference to any benefit she was to derive 
firom him, spoke of or referred to the said annuity as 
the only benefit which she would in any way derive 
firom him or his property ; and this, &c. 
Seventeenth. That during the months of July and August, in the 
said year 1888, the said deceased several times, and 
among other times, on the 9th day of the said month 
of July, visited the aforesaid William Law, then resid- 
ing at Instow, about three miles firom Fronington, and 
on some of such occasions spoke to him in the most 
unreserved and confidential manner of the connexion 
he had with the said Anne Melton, of its having been 
broken off, and of the provision he had as aforesaid 



TCSTAMSMTARY CAUSBS. 567 

made for her; but neither on those nor any other ooca* 
sion> up to his death, did the deceased ever mention or 
intimate to the said William Law, or give the said Wil* 
liam Law any reason to suspect, that he had given or 
intended to g^e to the said Anne Melton any legacy or 
bequest by his will or codicil, or that he had made or 
wonld make any further or other provisbn for her; and 
thisy&c. 

That in or about the month of August, in the said Eighteenth, 
year 1838, the said Anne Melton was married to the 
aforesaid Tom Dight Mackenzie ; that the said parties 
at such time, and for some months afterwards, resided 
at Barnstaple ; that prior to the month of November, 
in the said year, the said George Adand Barbor, the 
deceased, at the solicitation of the said Anne Melton^ 
now Mackenzie, made her several advances of money, 
amounting in the whole to the sum of sixty pounds, 
whidi he considered as payments on account of the 
first year's annuity of eighty pounds which he intended 
to setde, and considered he had setded, upon her, as 
in the fifteenth preceding article of this allegation is 
pleaded ; that in the said month of November, Mr. 
WilUam Gribble, a solicitor, practising at Barnstaple 
acting on behalf of the said Anne Madcengie and Tom 
Dight Mackenzie, having inquired of the aforesaid 
Thomas Hooper Law in what manner tlie annuity to 
the said Anne Macken^e would be paid, the said 
Thomas Hooper Law thereupon saw the said deceased, 
and was informed by him that he, the deceased, had 
paid to the said Anne Mackenzie several sums of 
money, amounting to sixty pounds, on account of the 
first year's annuity; that the said Thomas Hooper 
Law, having subsequentiy informed the said William 



668 



TSSTAMEKTARY CAUSB8. 



Oribble that, though the annuity wa^ in the bond ex- 
pressed to be one hundred pounds, the sum agreed 
upon between the parties to be paid and received was 
eighty pounds per annum only, and that the said d^ 
ceased had paid the said Anne Mackenzie sixty pounds 
on account of the first year's annuity, the said WilUam 
Oribble told the said Thomas Hooper Law, that both 
such circumstances were denied by the said Anne Mao- 
kensie and Tom Dight Mackenzie, his clients; and 
this, &C. 
Nineteenth. That the said deceased having been informed by the 
said Thomas Hooper Law of the denials of the said 
Anne Mackenzie and Tom Dight Jtfackenzie, in the 
next preceding article pleaded, expressed great surprise 
and anger thereat, and on or about the 7th day of 
December, 1838, in the presence of the said Thomas 
Hooper Law, told the said William Gribble that he had 
paid Mrs, Mackenzie sixty pounds on account of the 
first year's aimuity, and that she had decidedly pro- 
mised him that she would not take a larger annuity 
than eighty pounds a-year, though the bond was ex- 
pressed to be for one hundred pounds a-year, and that she 
had wished the bond to be for the one hundred pounds 
a-year, merely to satisfy or shew to her fn^ids, that 
they might believe she had one hundred pounds a^yeafi 
but that she would never claim it, or words to that or 
the like efiect; that the said William Gribble there- 
upon said that he would communicate such statement 
to his clients ; and this, &c. 

That on the 11th of January, in the year 18S9, Wil* 
liam Gribble, the younger, the son and derk of the 
aforesaid William Gribble, and acting on behalf of the 
said Anne Mackenzie and Tom Dight Mackenzie, 



Twentieth. 



TESTAMENTARY CAUSES. 569 

called iipon the aforesaid Thomas Hoopier Law^ and, 
notwithstanding the premises, applied for payment of 
fifty pounds, as the half-year's annuity due on the 25th 
of December preceding ; that the said Thomas Hooper 
Law on the same day communicated to the said de- 
ceased the &ct of such application; that the said 
deceased thereupon expressed great anger and displea- 
sure at the conduct of the said Anne Mackenade and 
Tom Dig^t Mackenzie, and requested the said Thomas 
Hooper Law to write to the said William Gribble on 
the subject of the payment on account and as to the 
amount of the annuity to be paid, and directed that if 
the payment on account was still denied, and the oiie 
hundred pounds a year required, the said Thomas 
Hooper Law should pay fifty pounds as the first half- 
year's annuity, taking the receipts of Mr. and Mrs, 
Mackensde for the same ; he, the said deceased, declar- 
ing at the same time, that he only gave up the point 
because he was unable to prove the agreement and the 
payment of the money, or words to that or the like 
effect; that accordingly on the next day the said 
Thomas Hooper Law wrote, addressed, and sent a 
letter to, and which letter was duly received by, and is 
now (if not destroyed) in the possession of the said 
William Gribble, of the tenor or to the effect following, 
to wit: 

'^ Barnstaple, 12th January, 1839. 
^ Re Mackenzie's Annuity. 
*^ Dear Sir, 
^Tou will no doubt recollect the statement which 
Mr. Barbor made to you on this subject, viz., that it 
was agreed that the annuity should be nominally one 
hundred poimds, but in reality only eighty pounds 



570 TE8TAMBMTAEY CAU&B& 

should be paid or d^nanded, and diat he had paid sixty 
pounds on account of the first year's annuity ; I have 
therefore to request that you will inform me whetha 
your client really means to require that the amuoty 
shall be paid at the rate of one hundred pounds, and tx) 
deny that the sixty pounds have been paid on account. 

'' I am, dear Sir, 

'^ Yours yery obediently, 

^ Thos, Hoopbb Law. 
^ William Oribble, Esq/' 



That no written answer was returned to the said letter, 
but on the same day the aforesaid William Gribbl^ the 
younger, called upon the said Thomas Hooper Law, and 
informed him that the one hundred pounds a-year was 
required to be paid, and the sixty pounds was denied 
as being paid in part, Mrs. Mackenzie sayings that the 
same had been reodved as a gift; whereupon the said 
Thomas Hooper Law, pursuant to the aforesaid instruo- 
tions received firom the said deceased, undertook to pay 
the fifty pounds aa the first half-year's annuity, doe on 
the 25th December, 1838, on having the joint reeeipt 
of the said Anne Mackenzie and Tom Dight Mackenae; 
that accordingly, the said William GribUe, the younger^ 
left the office of the said Thomas Hooper Law, and in 
a short time returned thereto, bringing with him the 
joint receipt of the said Anne Mackenzie and Tom 
Dight Mackenzie for the said sum of fifty pounds, 
which the said Thomas Hooper Law then paid to th« 
said William Gribble, the younger, for thdr use ; and 
that on the 26th day of June, 1839, the said Thomas 
Hooper Law paid a like sum of fifty pounds as the 
second half-year's annuity, due on the 25th of June, 



TESTAUBNTART CAUSBS* 571 

1839, to the said Anne Mackenzie under the said bond^ 
to the said William Gribble> the younger^ and Feceived 
from him a receipt in the joint names of the said Anne 
Mackenzie and the said Tom Dight Mackenzie; and 
thU,&c, 

That in part supply of proof of the premises mentioned Twenty-first 
in the next preceding artide^ the party exhibits^ &C.9 two 
stamped paper writings^ marked C and D^&c^tobe and 
amtam the original joint receipts given and signed by the 
said Aone Mackenzie, party in this canse^and Tom Dight 
Mackenzie, her husband, as mentioned in the said ar- 
ticle; and that all things were so had and done as 
therein contained ; that the names '^ Anne Mackenzie,^ 
set and subscribed to the said exhibit marked C, 
and the names ^^Anne Melton Madcenzie,'' set and 
sobflcribed to the said exhibit marked D, were and are 
of the proper handwriting and subscription of the said 
Anne Macken^de, (wife of the said Tom Dight Mac- 
kenzie,) formerly Melton^ party in this cause ; and the 
initials and name ^'T. D. Mackenzie/' set and sub- 
scribed to the said two exhibits respectively, were and 
areof tlxe pn,per handwriting aZoLription of the 
said Tom Dight Mackenzie, and the same are so well 
known and believed to be by divers persons of good 
&itih, credit, and reputation, who know and are well 
acquainted with them the said Anne Mackenzie and 
Tom Di^t Mackenzie, and have firequently seen them 
write and subscribe thdr names to writings, and thereby 
^d otherwise have come to know and be well acquainted 
with thdr manner and character of handwriting and 
subscription ; and this, &c. 

That firom the time of the denials of the said Anne Twenty- 



Mackeuaae and Tom Dight Mackenzie, respecting the ^^^^' 



t 



57S TESTAMENTARY CAUSES. 

amount of the aforesaid • annuity^ and fihe payment 
claimed by the deceased to have been made on account 
thereof^ as pleaded and set forth in the nineteenUi pre- 
ceding article of this allegation^ up to the time of his 
death, the said deceased entertained, expressed, and 
evinced the most marked aversion towards the said 
Anne Mackenzie and Tom Dight Mackenzie;, calling 
them by the most opprobrious names, and complaining 
to his friends and others of their dishonest conduct 
towards him, at which he expressed himself as greatly 
exasperated and disgusted, and frequently dedaied, 
among other things, to the effect tliat he agreed to give 
the said Anne Melton eighty pounds a-year, with which 
she had expressed herself satisfied; and though the 
deed was, at her request, made for one hundred pounds, 
to show to her friends, she had agreed never to de- 
mand more than eighty pounds, and that on her going 
to be married to Mackenzie, he, the said deceased, had 
at their entreaty advanced them money on account of 
the annuity, and that afterwards they had had the im- 
pudence to assert that he had made them a present of 
it, and if it were otherwise, of course he, the deceased, 
had the receipt, or he declared that they had asserted to 
that or the like effect ; and he, the said deceased, fre- 
quently complained that they had also claimed^ the 
whole one hundred pounds a-year instead of eighty 
pounds, as agreed ; and the said deceased, on many 
occasions, told his friends and others that he'had bound 
himself to pay to the said Anne Mackenzie one hundred 
pounds a-year during her life, and therefore that he 
would ; but that he would take good care that he did 
not pay her one shilling more than he was so bound, 
or words to that or the like effect \ and this, &c« 



TESTAMENTARY CAUSES. 573 

That in the month of November, in the year 1838, Twenty- 
Charles Edward Bernard, Esquire, the younger, who 
was a very intimate and confidential firiend of the de* 
ceased, was stopping, (as he frequently did,) on a visit 
in the house of the said deceased at Fremington, where 
he remained with him five weeks, or thereabouts, during 
which time also William Arundell Yeo, party in this 
cause, was also staying on a visit to the said deceased ; 
that daring such visit tiie said deceased had several con- 
fidential conversations with the said Charles Edward 
Bernard, in one of which, of a more confidential nature, 
he told the said Charles Edward Bernard that he had 
made his wiU, and had left his property to Doctor Yeo, 
meaning the said William Arundell Yeo ; that he had 
made a provision for A M S of four hun- 
dred pounds a-year, and that he had left his daughter, 
by her, a sum which would give her one hundred and 
twenty pounds per annum ; the deceased also, on the 
said occasion, stated to the said Charles Edward Ber- 
nard, confidentially, many other matters regarding his 
property, and the disposition of it ; his then income, 
and his probable income if he lived sufficiently long for 
leases to faU in ; he also told him of the allowance he 

was then making to the said A M S y and of 

&at he was making to the aforesaid Anne Mackenzie of 
one hundred pounds per annum ; but the said deceased, 
though on such occasions conversing in the most unre- 
served manner with the said Charles Edward Bernard, 
on his most secret afiiedrs as well as on his testamentary 
acts, never did, on that' or on any other occasion, 
mention or intimate to the said Charles Edward Ber- 
nard, or^ve the said Charles Edward Bernard the 
slightest ground to believe or suspect that he had given. 



574 TBSTAMBHTARY CAUSES. 



or intended tx) giy^ to tbe said Anne Mackenaae any 
l^acy or bequest by his will or oofficiU or that he had 
made^ or would make^ any further proyision for her flian 
that he had as aforesaid made of the aforesaid annuity 
of one hundred pounds per annum for her life; biit,(» 
the contrary, the said deceased did, on the said ooca»on 
and on several subsequent occasions, express to the said 
Charles Edward Bernard his deep regret that he had 
committed himself, even to that extent, and oomphiined 
of the conduct of the said Anne Mackenzie and the 
said Tom Dight Mackenzie, in respect to their demand- 
ing payment of the whole annuity of one hundred 
pounds, and their denial that the sums paid to them by 
him previous to the 25th December, 1838, were pay- 
ments on account of such annuity, and the deceased 
otherwise comphdned of and spoke with great indigna- 
tion and displeasure of the said Anne Mackenzie and 
the said Tom Dight Mackenzie to the said Chailes 
Edward Bernard ; and this, &c. 
Twenty. That m the month of May, in the year 1839, the siid 

deceased went abroad; that firom the 22d day of 
June, I8S8, up to the time of his so going abroad, 
the said deceased, though in the habit of almost daily 
unreserved and confidential intercourse with the afore- 
said Thomas Hooper Law, on no occasion whatetcr 
mentioned or intimated to the said Thomas Hooper 
Law, or gave the said Thomas Hooper Law the slightest 
ground to believe or suspect that he had given, or in- 
tended to give, to the said Anne Mackenzie any lQ[a^ 
or bequest by his will *or codicil ; or that he had made, 
or would make, any further provision Tor her than he 
had made by the aforesaid annuity of one himdred 
pounds per annum for her life ; but, on the contrary} 



fourth. 



TBSTAMBNTARY CAUSES. 575 

the said deceased did frequently, subsequently to the 
execution of the aforesaid bond securing the same, ex- 
press to the said Thomas Hooper Law his displeasure 
and mdignation at the conduct of the said Anne Mao- 
kenade and Tom Dight Mackemde, and his great regret 
ftat he had committed himself even to the extent of 
the said bond ; and this, &c« 

That in the month of June, 1839, the said deceased T^"^^' 
was residing at Frankfort-on-the-Maine with the afore- 
said A M S , who passed there as his wife, 

and with their aforesaid daughter ElUza Barbor ; that 
the aforesaid Charles Edward Bernard, the yoiinger, 
was at such lime at Wiesbaden, and, at the request of 
the said deceased, communicated to him about the 
latter end of the said month, some time afterwards 
went on a visit to the said deceased at Frankfort, 
and remained with him two or three days, and then 
returned to Wiesbaden; that the said Charles Ed- 
ward Bernard having shortly afterwards received 

information from the said A M S that 

the said deceased was very unwell, again went to 
the deceased at Frankfort aforesaid, and with a slight 
interval remained with him till he died; that during 
such second visit, and shortly prior to his death, the 
md deceased told the said Charles Edward Bernard 
that he was conscious of his approaching death, and in 
leply to questions put to him by the said Charles Ed- 
ward Bernard, as to whether he had any communica- 
tions to make, or wishes to express, stated that he 
had none; that the said Charles Edward Bernard, on 
one or more occasions, asked the said deceased whether 
he had any instructions to send to Fremington or to 
England^ as he was writing to Doctor Teo, to which 



576 



TESTAMENTARY CAUSES. 



Twenty- 
sixth. 



Twenty- 
neventh. 



eighth. 



the said deceased always replied in the negative; and 
this^ &c. 

That about the middle or latter part of the m<mth of 
August, in the year 1839, the before*mentioned Wil- 
liam Gribble, sfdll acting on behalf of the sud Anne 
Mackenzie and Tom Dight Mackenzie, having applied 
to the aforesaid Thomas Hooper Law, to shew him 
Mr. Barber's, (meaning the said deceased's,) will^ the 
said Thomas Hooper Law declined so to do until he 
had consulted Doctor Yeo, adding that the said will 
was at such time in the course of being proved^ but 
that he )iad not yet received the probate from London; 
that the said William Gribble then informed the said 
Thomas Hooper Law, that Mrs. Mackenzie, (meaning 
the aforesaid Anne Mackenzie,) had desired him to 
make the inquiry, as she wanted to know whether her 
name was mentioned in the will ; upon which the said 
Thomas Hooper Law expressed his surprise that she 
could expect it, having been othewise so handsomely 
provided for, and informed him that Mrs. Mackenzie's 
name was not mentioned in the will ; and this, &c. 

That probate of the last will and testament of the 
said deceased (bearing date as pleaded in the fourth 
preceding article of this allegation) was, on the 27th day 
of August 1839, granted by the authority of this court 
to the sidd William ArundeU Yeo, as the sole executor 
therein named, as by the acts and records of this court, 
relation being thereto had, will more fuUy appear; 
and this, &c. 

That the aforesaid William ArundeU Yeo was during 
great part of the month of July, and of the month of 
October, and also during the whole of the month of 
November, in the year 1839, residing at Fremington 



.•^ 



TESTAMENTARY CAUSES^ 577 

Honae, and on many days during the said periods 
came into Barnstaple on business or otherwise; that 
on Monday, the 25th day of the said month of Novem« 
ber, tibei said Wil£am Gribble, still acting on behalf of 
the said Anne Mackenzie and Tom Dight Mackenzie, 
again applied to the said Thomas Hooper Law, to shew 
him, the said "William Gribble, the will of the deceased, 
which the said Thomas Hooper Law declined to do, 
stating, boweyer, that as the will had been proved, it 
coold be seen in. the common course at Doctors' Com''' 
mons ; tiiat the sud Williaim Gribble then stated that 
he made the application on behalf of Mrs. Mackenzie, 
(meaning the said Anne Mackenzie, party in this 
cause;) and asked if there was any codicil to the de- 
ceased's will; to which inquiry the said Thomas 
Hooper Law replied, there was not, and that he had 
never heard of any codicil, or to that effect ; that the 
said William Gribble then said, that '' there was a codi- 
cil; that Mrs. Mackenzie had one in her possession, 
Aod that Mr. Mackenzie was a witness to iV or words 
to that or the like effect, but at the same time refused 
to state the contents or purport thereof; and the 
party proponent doth expressly allege and propound, 
that prior to the occasion of the interview between the 
said William Gribble and Thomas Hooper Law, in this 
article pleaded as having taken place on the 25th day 
of November, in the year 1839, no suggestion was ever 
made to tlie said William Arundell Teo, or to Thomas 
Hooper Law, his confidential solicitor, or to any person 
on his or their behalf, that the said deceased had ever 
nuide or left behind him any codicil whatever to his 
aforesaid last will and testament, or any other testa^ 
inentary paper whatever, bequeathing any legacy to or 

p p 



578 TESTAMENTARY CAUUSS. 

in favour of the said Anne Melton^ now Madcenne, or 
any odier testamentary paper whatever, save and except 
his said last will and testament; and this, &c. 
Twenty. That firom the 26tih day of November, in the year 

ninth. ,, -■•1 i«^ 

1839, no communication of any kind was had between 
the said Anne Mackenzie, Tom Dight Mackenne, or 
either of ihem, or between Wilham Gribble, their soli- 
ritor, or any person on their behalf, on the one part, 
and the said William Arundell Yeo, party in this cause, 
or the aforesaid Thomas Hooper Law, his confidentaal 
solicitor, on the other part, in reference to the afiairs of 
the said deceased, until the ninth day of December, in 
the said year 1839, when the said Thomas Hooper Law 
received a letter of that date, from the aforesaid W3- 
liam Gribble, acting on behalf of the said Anne Mac^ 
keiude and Tom Dight Mackenzie, informing him that 
Mr. Barbor, by a codicil made in the month of July, 
1838, and duly executed and attested, gave to Mrs. 
Mackenzie a legacy of five thousand pounds, and that 
(he codicil was then deposited in the registry at Doc- 
tors' Commons, and that on application to Messrs. 
Clarkson and Son, the proctors of Mrs. Mackensie, the 
same might be inspected, and requesting that Mr. Teo 
would take probate of the codidl in question imme- 
diately, or with as little delay as the circumstances 
require, seeing that tiie legacy was made payable within 
six months after Mr. Barber's decease ; and this, &c. 
Thirtieth. That in part supply of proof of the premises in the 

next preceding article mentioned, the party proponent 
exhibits, &c., paper writing marked E, &c, to be and 
contain the original letter written, signed, addressed, 
and sent by the aforesaid William Grribble to, and re- 
ceived by, the aforesaid Thomas Hooper Law, as in 



TB8TAMENTARY CAUSES. i7ft 

the next preceding mrliele menfianed; tii«t the whols 
body, Beries, and contents of the said exhibit^ and ihe 
sobacripdon thereto^ and the si^raoripdoB tlieeeon, 
irere and are of the proper handwriiang^ sabscriptiion, and 
mpencription of the said William Gxibble, and are so 
veil known and bddeved to be by divers persons of 
goodiaitb and credit, who have often seen him write and 
subscribe his name to writings, and are therdiy and 
otherwise well acquainted with bis manner and ofas«* 
rscter of handwriting and subscription; and tfau, &c. 

That about five or six years prior to his deatii Thirty-first, 
the said deceased was struck by paralysis^ from the 
effects of which he never recovered; that thereafter ha 
sivays used a stick when walking ; that notwithstandiiig 
the aid of such stick, he frequently^ liurough bis a£bre* 
said infirmity, fell to the ground ; that thougjh, finpm the 
time of his being so struck till his deaith, the £uct of 
even signing his name caused the said deceased a oonsir 
deiabk effort, and for which he made much prepara*- 
tkm, he nevertheless wrote and also signed his naaas 
in a rapd naanner, and of a finee style and character; 
and this, &c. 

That in part supply of proof of the premises in the Thirty. 
aat preceding article pleaded and set fortibi, thepartr '^ 
proponent exhibits, &c., paper writings, &c.i those 
marked firom No. 22 to No. 25 inclusiTe, &e», to. 
be and contain four original drafts or cheques for 
money, drawn by the deceased upoa )tbe National 
Provincial Bank of England, and the exhihitB 
marked from No. 26 to No. 52 inclusive, to he and 
coDtun tweuty-seven original drafts or dieques for 
money drawn by the deceased on the West of England 
and South Wales District Bank, and each and every of 

pp2 



580 TBSTAMBNTART CAUSES. 

the 'said thirty-one exhibits^ having the initials and 
name ^^ 6. A. Barbor ^' subscribed thereto, and that 
the isaid thirty-one cheques are the whole of the cheques 
signed by the said deceased, firom and after the 31st 
day of December, 1837, up to the time of his death, 
save and except eleven, which, after diligent search and 
inquiry, cannot be found; and this, &c 

Thirty-third. That the initials and name '^ O. A. Barbor ^ set and 
subscribed to each and every of the exhibits m the 
thirty-second preceding article pleaded, and the initials 
and name ^' G. A. Barbor ^^ set and subscribed twice to 
the aforesaid exhibit marked B, and also the before-re- 
dted addition of the words, ^ I have made some altera- 
tions in this bond, which are quite correct,'^ appearing 
on the said fly leaf of the said exhibit marked B, were 
and are of the proper handwriting and subscription of the 
aforesaidGeoige Adand Barbor, Esquire, the deceased in 
this cause, and are so well known and fully believed to 
be by divers persons of good fame, credit, and reputa- 
tion, who well knew and were weU acquainted with him, 
and have oft»n seen him write, and write and subscribe 
his name to writings, and thereby and otherwise have 
come to know and be well acquainted with his manner 
and character of handwriting and subscription; and 
this &C. 

Thirty-fourth. That during the connexion of the deceased in this 
cause with liie aforesaid Anne Mackenzie, formerif 
Melton, party herein as hereinbefore pleaded, she the 
said Anne Mackenzie, then Melton, frequently receiTed 
letters from and written by the said deceased; that 
during such period she was in the frequent habit of 
imitating in writing the signatures of many persons wbo 
th^i corresponded with her, but more particolariy tbat 



TESTAMENTARY CAUSESi 581 

of the aforesaid George Adand Barbor^ the deceased in 
this cause; and on several occasions^ when the said 
Anne Mackenzie^ then Melton^ has so imitated the 
signature of the said deceased^ she has shown the said 
imitation to persons who were then present with her> 
and has asked whether it (meaning the imitation she 
had made) was not like (meaning the original signature 
from which she had made such imitation^) and if she 
the said Anne Mackenzie^ then Melton^ could not 
easily forge George's (by which application she was in 
the habit of calling the deceased in this cause^) name^ or 
words to that or the like effect; and this^ &c. 

That the words "This is*' at the commencement, Thirty-fifth, 
and the initials and name " G. A. Barbor'^ at the end 
or conclusion of the pretended codicil propoimded in 
this cause^ by and on the part and behalf of the said 
Anne Mackenzie^ heretofore Melton^ and Tom Dight 
Mackenzie^ the other parties herein^ are not^ nor is any 
part thereof^ of the proper handwriting and subscription 
of George Adand Barbor^ Esquire^ the deceased in this 
cause ; and that the said words^ initials^ and name, are 
well known or fully believed not to be of the said de- 
ceased's handwriting and subscription to and by divers 
persons of good fame, (Credit, and reputation, who knew 
and were well acquainted with him, and have oflen seen 
him write^ and write and subscribe his name to writings^ 
and thereby and otherwise have come to know and be 
well acquainted with his manner and character of hand- 
writing and subscription ; and this, &c. 

That all and singular the premises were and are true, Thirty-sixth, 
and so forth. 



»2 



T£8TAME;«TARY causes. 



Responsive 
allegation. 

First 



Second. 



Responsive Allegation. 

That Peter Rainier^ Esquire^ the party in this caase, 
deceased^ died on Monday^ the thirtieth day oi October, 
one thonsandeight hundred andthirty-seven^at thehoosei 
No. 9, Lower Grosvenor Street, in the parish of Saint 
George, Hanover Square, in the county of Middlesex, 
to which he had been recently before brought from 
France, as is hereinafter pleaded, a bachelor, of the age 
of sixty years or thereabouts, leaving behind him Elisa 
McQueen, wife of James McQueen, Esquire, (Ci^itain 
in Her Majesty's Fifteenth Regiment of Hussars,) his 
lawful niece, only next of Idn, and heiress at law, the 
only person who would have been entitled to his estate 
and effects in case he had died intestate ; that at the 
time of his death he was possessed of, or entitled tp, 
personal property of the amount or value of sixty-five 
thousand pounds or thereabouts, and of real estate to 
the amount or value of two thousand pounds or there> 
abouts, the bulk of both which properties he derived 
from his paternal unde;, the late Admiral Peter Rainier; 
and this, &c. 

That the said Eliza McQueen, wife of the said James 
McQueen, heretofore party in this cause, is the daughter 
and only child of Rear-Admiral John Sprot Rainier 
deceased, the brother of the said deceased; that the 
said deceased had and entertained very great regard and 
affection for his said brother during his lifetime, and, (so 
long as he, the deceased, retained possession of his 
recollection and mental faculties,) great respect and 
afiiection for his memory after his death ; that the said 
deceased also had and entertained great regard and 



TESTAMBNTAKY CAUSES. 58S 

affection for Eliza Rainier, widow, the relict of his said 
farotber, and an annuitant for life named in the said 
trae and original last will and testament of the deceased 
bearing date the twenty-sixth day of January, one 
thousand eight hundred and thirty-six, and also for 
the said Eliza McQueen and James McQueen ; and 
this,&c. 

That on or about the twenty-sixth day of January, Third, 
one thousand eight hundred and thirty-six, the said 
deceased called at the office of Mr. John Gregson, in 
Bedford Row, taking with him a will or other writing 
in the nature of a will or a draft thereof, which he had 
drawn and prepared in his own handwriting, and which 
he showed to the said solicitor, and requested him to 
read the same and give him his opinion as to the suf- 
ficiency thereof; that the said John Gregson, having pe- 
rused such will or paper, informed the deceased that it was 
not altogether technical, or required to be put into better 
form, or to that eifect; whereupon the deceased requested 
the said solicitor to draw a will, or prepare a will, there- 
from and pursuant thereto, and in accordance with the 
directions and instructions of him, the said deceased, 
the very paper writing now remaining in the registry of 
this court, annexed to the affidavit of Ellen Elwyn, the 
other party in this cause, as to scripts, now marked with 
the letter C, was drawn up and reduced into writing, 
and the same, having been approved of by the de- 
ceased, was, on or about the twenty-sixth day of the 
said month of January^ one thousand eight hundred 
and thirty-six, being the day of the date thereof, duly 
executed by him, the deceased, as and for his last will 
and testament, in the presence of the several persons 
whose names are subscribed as witnesses thereto, and 



684 testamentaYiy causes. 

who so set and subscriljed their names as witnesses of 
the dae execution of the said will in Uie presence of 
him^ the deceased, and of each other ; and he, the de* 
ceased, did, of his said will, nominate, constitute, and 
appoint the said Charles Deare and Thomas May- 
hew, Esquires, executors, and did give, will, bequeath, 
dispose, and do in all things as is contained in said wiQ; 
and this, &c. 

Fourth. That the said deceased, at some time after the making 

and execution of the said will, dated the twenty-sixth 
day of January, one thousand eight hundred and thirty* 
six, as pleaded in the next preceding article^ but when 
in particular the party proponent is unable to set forth, 
having discovered that Margaret Mayhew, spinster, was 
not named as a legatee in such will, and having a mind 
and intention to bequeath an equal benefit to her, as be 
had thereby given to her sisters and brother, with his 
6wn hand wrote and interlined the name '^Mai^garet 
Mayhew,^' between the second and third lines ef the 
said will, and also signed and placed the letters ^ P. R.," 
being the initial letters of his name, following the same, 
in manner and form, as in the said will now appears; and 
thereby gave and bequeathed to her the legacy or som 
of three hundred pounds ; which sum he had, by die 
said will, previously given and bequeathed to each of 
her said sisters and her brother ; and this, &c. 

Fifth. That the said deceased, at some time happening after 

he had inserted the name of the aforesaid Maigaret 
Mayhew as a legatee in his said will, as pleaded in die 
preceding article, but at what time in particular the 
party proponent is unable to set forth, drew up and 
wrote with his own hand a summary or abstract of 
the contents of the said will, as a lAemorandum for his 



TESTAMENTARY CAUSES. 585 

own ose^ the same being the very paper writing now 
marked with the letter D^ and annexed to the said 
affidavit of the said EUeu Blwyn^ as to scripts ; and 
thiB>&c« 

That the aforesaid name '' Margaret Mayhew/^ and Sixth, 
the said initial letters '^P. R.^ following the same^ 
written and interlined as aforesaid in the said will oC 
the twenty-sixth day of January, one thousand eight 
hundred and thirty-six, marked C, and also the whole 
body, series, and contents of the said script marked 
D, being tbe aforesaid summary or abstract thereof^ 
were and are of the proper handwriting and subscrip- 
tion of the said Peter Rainier, Esquire, the party in this 
cause, deceased, and are so well known and believed 
to be by divers persons of good faith and credit who 
knew the deceased, and are well acquainted with the 
maimer and character of his handwriting and sub- 
scription, from having frequently seen him write, and 
also write and subscribe bis name ; and this, &c. 

That the said deceased, for many years prior and Seventh, 
until die month of March, one thousand eight hun- 
dred and thirty-six, lived and resided in his own 
house or chambers, situate in the Albany, in the pariah 
of Saint James, Westminster, aforesaid; that prior to 
the decay of his mental fiunilties, he was a man of 
good understanding, and of extensive literary and 
dassieal acquirements, particularly on the subjects of 
botany, painting, antiquities, and the fine arts, and 
remarkably correct and gentlemanly in his language^ 
manners, and behaviour ; and this^ &c. 

That^ in the latter part of the year one thousand Eighth, 
eight hundred and thirty-four, the said deceased fell from 
his horse^ whilst riding in Regent's Park, and such acd- 



586 TESTAMENTARY CAUSES. 

dent was immediately preceded or followed by a severe 
attack of apoplexy, which he experienced on that oc- 
casion, and which caused a paralytic affection of his 
right arm and leg and right side; that, save as to 
sndi paralytic affection, which was never removed, he 
recovered firom the immediate effects of the said 
attack, but was much injured thereby in his general 
constitution and health; that the said attack produced 
disease of the brain and cerebral system of the said 
deceased, in consequence of which, at a later period, 
his bodily and mental powers became gradually im- 
paired, until eventually he, the said deceased, became 
wholly incapable of managing himself or his afiairs, or 
of perfonning any serious or rational act requiring 
thought, judgment, and rejection, as is hereinafter more 
particularly pleaded ; and this, &c« 

Ninth. lliat, after the marriage of the said Ellen Elwyn to 

ihe said William Brame Elwyn, which took place in 
or about , the said deceased, who 

had been previously acquainted with the said William 
ftrame Elwyn, was introduced to the said Ellen Elwyn ; 
that she, the said Ellen Elwyn, endeavoured as much as 
possible to ingratiate herself with the said deceased, 
and paid him very much court and attention, and very 
much improved her acquaintance and familiarity with 
him, of which she eventually took advantage, when he 
was in an infirm and declining state of healdi, to induce 
him to reside with her, and to be subject to her in- 
'Attence and control, as is hereafter more partieolaily 
pleaded and set forth ; and this, &e* 

Tenth. That when, as aforesaid, the said deceased gave up 

his residence in the Albany, he took, and at a oonsi- 
derable expense furnished, a house in Dean Street, 



TESTAMENTARY CAUSES. 587 

Park Lane, in the county of Middlesex, where, how- 
ever, be only resided for the space of three or four 
months or thereabouts, when he went to viflit the said 
William Brame Elwyn and Ellen Elwyn at Boulogne- 
sur-Mer, as hereafter pleaded ; that the said house and 
establishment of the said deceased in Dean Street were 
nerertheleas continued and kept up at his expense for 
aome time after he went to Boulogne, and the said 
bouse was not finally giTen up or disposed of on the 
part of the deoeaaed until in or about the month of 
July last past, as hereinafter is more particularly 
pleaded and set forth ; and this, ftc. 

That in or about the said month of June^ one thou- Eleventh, 
sand eight hundred and thirtyndz, the said deceased, at 
the invitation and by the persuasion of the said Ellen 
Elwyn and her husband, accompanied them, as for a 
visits to Bonlogne-sur-Mer, in France, where they for 
some time previously had had a residence ; that he, the 
deceased, did not, however, return to England, but, by 
the persuasion and soKcitatian of tiie said Ellen Elwyn 
and her husband, was induced to remain at Boulogne, 
and he continued to live and reside there until tihe 
month of October last, when he was brought to 
London, as after pleaded, save that in or about the 
month of May last the said Ellen Elwyn took him to 
IHuris, where he was for the space of sdx weeks or there* 
abouts; that the only other inmates of the house, where 
the deoeaaed was, kept at Boulogne, besides children 
and senreats, were the said EUen Elwyn, the said Wil- 
liam Bnune Elwyn, her husband, and Elizabeth Rees, 
her nater, and a young female who passed by the name 
of Susan Rees and as the niece of the said Ellen Elwyn; 
and this^ &c. 



586 



TE8T4KBNTAKY CAUSES. 



Twelfth. 



Thirteenth. 



That shortly after the said deoeased^^was at Boulogne^ 
the said Ellen Elwyn by degrees contrived to get into 
her own hands the management of all his pecuniary 
transactions^ and took upon herself the direction of all 
his affairs, at first obtaining his consent and sanction 
thereto upon each particular occasion^ but latterly witln 
out any reference whatsoever to him ; that she opened 
all letters addressed to him^ and answered and kept or 
destroyed the same as she thought proper; and the 
p^rty proponent doth farther allege and propound that 
during the time that the said deceased was in France 
and afterwards in London^ until his deaths she^ the said 
Ellen Elwyn> procured and obtained payment to be 
made to her of very large sums of money belonging to 
the deceased^ and which she spent or appropriated to 
her owi^ use without rendering any account thereof to 
the said deceased ; that during the last year of the de- 
ceased's life she obtained and appropriated four Aon- 
sand pounds or thereabouts^ belonging to him^ of whidi 
one thousand one hundred and fifty pounds, or there- 
abouts, were obtained by her within one m<mth of his 
death; «ad this, &c. 

That the said deceased carried the aforesaid will of 
the twenty-sixth day of January, one thousand eight 
hundred and thirty*six, with him to Boulogne^ and for 
some time after he was there; and, so long as he retained 
possession of his reason or understandings he was very 
careftd and particular as to the custody th»eo^ and 
kept the same in a writing-desk or drawer, of which he 
retained the key, attached to a string, which he always 
wore about his neck, and of which he was very teaa- 
cious, and he was annoyed and displeased whenever the 
said Ellen Elwyn looked into or endeavoured to inspect 



TESTAMENTARY CAU8E8. 589 

or iiso6rtain the contents of such drawer or desk^ which 
she frequently endeavoured and wished to do ; and the 
party proponent doth further expressly allege and pro^ 
pounds that some time after the said deceased was at 
Boulogne, she, the said Ellen E^wyn, obtained access to 
lihe said will, and became aware of all the contents and 
dispositicms tiiereof ; and this, &c. 

That on a day happening in or about the month of Fourteenth. 
April, one thousand eight hundred and thirty-seren, 
&e said EUen Elwyn informed Robert Sandum, Susan 
Sandum, (wife of the said Robert Sandum,) and Alice 
Rmunan, spinster, respectively in the service of the 
said deceased, and legatees named in the paper writing 
purporting to be a codicil to the said will of the twenty* 
sixth day of January, one thousand eight hundred and 
thirty-nx, now remaining in the registry of this court, and 
annexed to the said affidavit of scripts of the said Ellen 
Elwyn, and marked E, or some or one of them, that 
the said deceased had made a codicil, thereby meaning 
and referring to the said paper writing; and she then, or 
on some other occasion, showed the said paper writing 
to them, the said Robert Sandum, Susan Sandimi, and 
Alioe nuraman respectively, and desired them to read 
it, which they severally did, and the said Ellen Elwyn 
then declared, ^^ That she was very glad to think that 
she had got tiie said deceased to leave his servants 
sometlung, and that she should keep the said codidl, 
and that if Mr« Rainier (meaning the deceased) re- 
mained with her, all of them, the said servants, would 
get their money, but if he did not, she would not 
answer for itf* or she, the said Ellen Elwyn, then and 
also on other occasions expressed herself to the same 
efiect;. and this, &c. 



590 



TE8TAMEKTART CAU8BS. 



Fifteenth. 



Sizteenih. 



That about the end of the year one thousand agfat 
hundred and thirty-siz, or the bqpnning of one diou- 
sand eight hundred and thirty-se^^n, the sjrmptoms of 
the disorder of the brain with which the deceased was 
affected became more marked and decided^ and sudi 
disorder, and the imbecility and impairment of the 
mental faculties consequent thereon, Tery mudi in- 
creased, and continued so to do progressively until he 
was reduced to a state of the most deplorable helpless- 
ness and infirmity, insomuch that when he the de- 
ceased was taken to Paris as aforesaid, and for some time 
prior thereto, he had not the slightest use or oommand 
oyer any of his limbs, and was unable to peiform any 
act whatever for himself, and his pofwers of speech and 
articulation were to a oonsideiable degree impaired, and 
he was quite unable to sustain any oonrersation in rela- 
tion to his common wants and the merest trifles ; that 
his mental iaculties were also greatly injured and im- 
paired, and that in and before the month of September, 
one thousand ei^t hundred and thirty-seven, he ap- 
peared to be, and was sunk into, a state of complete 
imbecility and childishness aj^roaching to i£otcy, and 
was quite incompetent to transact any business, or do 
any act of a serious import, requiring thought, judg- 
ment, and reflection, and he was in the power and 
imder the control and undue influence of the said Elkn 
Elwyn and her husband, and was altogether unable to 
resist importunity and the undue influence of designing 
persons ; and this, &c. 

That some time b^ore he went to Paris, and also 
whilst there, and subsequently until his death, he the 
deceased continuaDy acted in a strange, foolirii, and 
childish manner, and by his conduct plainly evinced 



TSSTAMEMTARY CAUSES. 591 

impaired intellect and the loss of sense and reason^ and 
he was subject to delusioBS^ under which he acted; 
that he would sometimes be and remain in a state of 
abstraction and dejection, and would not take notice of 
any person or object ; at other times he would^ without 
any caos^ burst into fits of immoderate laughter ; and 
be was in the habit of swearing violently^ cursing the 
Deity, himself, and all mankind, wishing himself in 
hell, and breaking out into other impious execrations ; 
that he was also in the habit, particularly at night, of 
hallooing and screaming out, and making loud unmean- 
ing noises, insomuch that he was heard at a consider* 
able distance, though he was constantiy attended, by 
night as well as by day, by a nurse or some other ser- 
vant^ and that when questioned on the cause of having 
done so, he would look vacantly, and was never able to 
give an intelligible answer, or he would positively deny 
that he had at all caUed out ; that he also frequentiy, 
and as well by night as by day, called out for his nurse 
or attendant, or rung violentiy a bell which was placed 
in his reach, and would afterwards positively deny he 
had called out or rung, and would with shocking impre- 
cations and language abuse and revile his said servants, 
and then talk in tiie most silly and incoherent manner ; 
that the deceased also appeared to be and was totally 
incapable of comprehending the simplest matter of 
account, and, though he had been formerly a very 
scientific botanist, he coidd not remember the names of 
the c(»nmone8t plants; that in like manner he lost all 
knowledge and recollection on the subject of painting, 
pictures, the fine arts^ and other subjects on which he 
had possessed extensive knowledge, having himself 
painted pictures held in great estimation, and composed 



592 TESTAMSMTARY CAUSES. 

works and dissertations on painting and other of the 
fine arts ; that he lost all ^nse of decency, and would 
allow the said Ellen Elwyn and other females to remain 
and be present when glysters were administered to him, 
and at times would be stripped stark naked in her pre- 
sence, and also in the iMresence of other females^ witfa^ 
out being sensible of any impropriety ; that he would 
also, when in the room with the said Ellen Elwyn and 
her sister, and the said Susan Rees, suddenly begin to 
perform the occasions of nature, and expose his person 
in the most indecent manner, and talk disgustingly; 
that he was also subject to various delusions; that 
amongst other delusions he fimcied he had more toes 
upon one foot than on the otiier, and would haye tiiem 
counted, and he often rung the bell in the night for his 
attendant, and made her count his toes, and inMKteH 
that his toes were not in their right pl